Atkins v. Atkins

• Decision Date: 31 March 1932
• Citation: 180 N.E. 613,279 Mass. 1
• Parties: ATKINS v. ATKINS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

279 Mass. 1

180 N.E. 613

ATKINS

v.ATKINS et al.

Supreme Judicial Court of Massachusetts, Essex.

March 31, 1932.

Appeal from Probate Court, Essex County; Harry R. Dow, Judge.

Bill by Reuben G. Atkins against Nathan K. Atkins and others. From the decree, petitioner and Nathan K. Atkins, principal respondent, appeal.

Affirmed.

G. Newhall, of Lynn, for appellant Reuben G. Atkins.

N. D. A. Clarke, of Lynn, for appellant Nathan K. Atkins.

J. C. Batchelder, of Salem, for executor James C. Batchelder.

CROSBY, J.

This is a suit in equity brought in the probate court by the petitioner against Nathan K. Atkins, individually, and said Reuben G. Atkins, Nathan K. Atkins and James C. Batchelder as executors of the will of Selina Atkins, and the Berkshire Life Insurance Company, seeking to have declared that a certain endowment insurance policy for $5,000 on the life of said Nathan K. Atkins is charged with a trust in favor of the petitioner, and to have the policy ordered to be assigned and delivered to him. Two demurrers, filed by Nathan K. Atkins, individually, and as coexecutor, were overruled and appeals were taken to this court. The respondent James C. Batchelder, as a coexecutor, and Nathan K. Atkins severally pleaded to the merits. The case was heard by the judge of probate who found, in fact, that in 1913 the Berkshire Life Insurance Company issued two endowment policies on the life of the respondent Nathan K. Atkins, the first, numbered 88542, payable in case of his death to his estate, and the second, numbered 88594-the policy here in question-payable in case of his death to his brother, who is the petitioner; that in 1921 both these policies were assigned to the testatrix, ‘who became the sole and absolute beneficiary under each policy’; and he ordered that a decree be entered that no trust existed in favor of either Reuben G. Atkins or Nathan K. Atkins in policy numbered 88594, but that it should be held and administered by the executors of the will of Selina Atkins as property belonging to her estate. From this decree the petitioner and Nathan K. Atkins, the principal respondent, appealed. The latter contends that his answer contains a cross-bill which seeks to have the insurance policy delivered to him, and that it was error for the judge not to order a decree to that effect. The evidence before the judge of probate is reported under G. L. c. 215, § 18, as amended by St. 1923, c. 392 and St. 1924, c. 194, § 1.

Nathan K. Atkins further contends that there was error in the trial judge's refusal to rule that ‘This court has power in this proceeding to decree that the executors of decedent's estate hold the policy No. 88594 referred to in the petition, in trust for the exclusive benefit of respondent Nathan K. Atkins and to order said policy to be assigned by said executors to him’; and that there was error in the admission of certain evidence. The petitioner contends, in substance, that there was a trust relationship in the whole transaction; that since the decedent was trustee of the estate of her husband for the benefit of herself and for her two sons equally, and as the premiums on the policy were paid at least in part out of said trust property, the policy is held subject to the same trust.

The judge found that after the decedent became sole trustee under her husband's will she began to take over the trust property into her individual name; that before her death it had all been so taken over and mingled with money which belonged to her individually, and that it could not be distinguished or separated therefrom. In these circumstances it is manifest that the trust came to an end. Little v. Chadwick, 151 Mass. 109, 23 N. E. 1005,7 L. R. A. 570. In the case last cited a trustee mingled trust assets with his own, used them all in his business, and subsequently failed and made an assignment for the benefit of his creditors. It was held that none of his property was affected with a trust, and that the beneficiary could only come in and share in the proceeds thereof with the creditors. In that case it was said, at page 110 of 151 Mass.,23 N. E. 1005, that ‘When trust money becomes so mixed up with the trustee's individual funds that it is impossible to trace and identify it as entering into some specific property, the trust ceases.’ To the same effect see also Lowe v. Jones, 192 Mass. 94, 100, 78 N. E. 402,6 L. R. A. (N. S.) 487, 116 Am. Sp. Rep. 225, 7 Ann. Cas. 551;Hewitt v. Hayes, 205 Mass. 356, 91 N. E. 332,137 Am. St. Rep. 448;Patterson v. Pendexter, 259 Mass. 490, 493, 494, 156 N. E. 687, and cases collected.

Whether or not there was any trust in the money held by Mrs. Atkins as trustee before either of the policies was issued, it cannot rightly be held in view of the circumstances that there is a trust in favor of the petitioner in the policy in question. If the policies were ever impressed with a trust, each was impressed with a trust in favor of both sons. But when both policies were assigned to Mrs. Atkins in 1921 the trust was extinguished and she then held the entire ownership in them. The judge found that there was no agreement with Nathan that when he should require it she would reassign the policy to him or her title in either policy. Even if it be assumed that the trust survived, there was no trust in one policy for the benefit of Nathan and in...