Attorney Gen. ex rel. Prendergast v. Bedard

• Decision Date: 17 June 1914
• Citation: 218 Mass. 378,105 N.E. 993
• Parties: ATTORNEY GENERAL ex rel. PRENDERGAST et al. v. BEDARD et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

218 Mass. 378

105 N.E. 993

ATTORNEY GENERAL ex rel. PRENDERGAST et al.

v.BEDARD et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 17, 1914.

Appeal from Supreme Judicial Court, Suffolk County.

Information in equity by the Attorney General, on the relation of James M. Prendergast and others, against Joseph Bedard and others. From the decree, certain defendants appeal. Modified.

The information, after alleging the raising of a fund by subscription for the relief of the strikers, alleged on information and belief that the personal defendants, conspiring and agreeing together, had used substantial portions of the fund for purposes entirely different from those for which it was donated by the contributors and for purposes other than the proper promotion of the objects of the trust, that it had in part been improperly used for the private and personal uses of the defendants and their associates, that they or some of them had drawn sums therefrom as salaries, that substantial amounts had been contributed for the board and private expenses of one of the defendants, who was confined in jail, that large amounts had been paid for the transportation to other cities of children for uses in connection with appeals for further contributions, that sums had been paid to counsel and others engaged in defending one of the defendants and others against criminal charges, and that large sums had been turned over to the Industrial Workers of the World.

James R. Dunbar and Ralph W. Dunbar, both of Boston (Dunbar & Rackemann and Frank Leveroni, all of Boston, of counsel), for Attorney General.

John F. Lynch, of Boston, John P. S. Mahoney, of Lawrence, and Geo. E. Roewer, Jr., of Boston, for respondents.

SHELDON, J.

[1][2] The demurrer rightly was overruled. According to the averments of the bill, the fund in question was raised by subscriptions as a relief fund, to relieve the necessities of a very great number of men who had engaged in a strike, and who thus had been left without any means of maintaining themselves and their families. The fund was raised and should be applied for the purposes of a public charitable trust. Jackson v. Phillips, 14 Allen, 539, 556;Attorney General v. Goodell, 180 Mass. 538, 62 N. E. 962; Attorney General v. Compton, 1 You. & Coll. Ch. 417; Attorney General v. Kell, 2 Beav. 575. It was upon the Attorney General that the duty rested of enforcing the proper application of the fund and of compelling the restitution of any part thereof which had been diverted to other purposes. R. L. c. 7, § 6; Parker v. May, 5 Cush. 337;Burbank v. Burbank, 152 Mass. 254, 25 N. E. 427,9 L. R. A. 748; Attorney General v. Vivian, 1 Russ. 226; Attorney General v. Cockermouth Local Board, L. R. 18 Eq. 172; Strickland v. Weldon, 28 Ch. D. 426. And see McQuesten v. Attorney General, 187 Mass. 185, 72 N. E. 965. And the occasion for the present application, the misappropriation of the fund by the defendants, is sufficiently averred. Attorney General v. Parker, 126 Mass. 216; Attorney General v. Bishop of Manchester, L. R. 3 Eq. 436.

The defendants' exceptions to the master's first report were waived, and those exceptions accordingly have been overruled by a decree from which no appeal has been taken.

The exceptions of the defendant Bedard to the master's supplemental report do not appear by the record before us to have been formally decided; but they really were disposed of by the action taken on the exceptions of the defendant Shaheen and by the final decree, which did not charge the defendants Bedard, Shaheen, Trautmann, and Yates (hereinafter called the defendants) with any part of the sums contributed for general purposes. The failure to take formal action upon Bedard's exceptions in not material now, but it should be corrected.

[3][4] The action taken on Shaheen's exceptions was sufficiently favorable to the defendants. The evidence heard by the master is not reported, and we cannot say that his findings were wrong. The defendants received the money in question as a trust fund. They must account for it, and can be credited only with disbursements which actually were made for proper purposes. They must be charged with everything for which they have not properlyaccounted. This is a sound principle, and is abundantly supported by authority. Little v. Phipps, 208 Mass. 331, 335, 94 N. E. 260,34 L. R. A. (N. S.) 1046;Ashley v. Winkley, 209 Mass. 509, 525, 95 N. E. 932; Watson v. Thompson, 12 R. I. 466, 470; Blauvelt v. Ackerman, 23 N. J. Eq. 495, 502; Frethey v. Durant, 24 App. Div. 58, 61,58 N. Y. Supp. 839;Seaward v. Davis, 133 App. Div. 191,117 N. Y. Supp. 468;Ward v. Armstrong, 84 Ill. 151;Chirurg v. Ames, 138 Iowa, 697, 116 N. W. 865. It was for the defendants to keep the trust...