Bowker v. Pierce

• Decision Date: 17 January 1881
• Citation: 130 Mass. 262
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: George Bowker, trustee, v. Martha A. Pierce & others

130 Mass. 262

George Bowker, trustee, v. Martha A. Pierce & others

Supreme Court of Massachusetts

January 17, 1881

Argued November 6, 1880

Essex. Appeal from a decree of the Probate Court, allowing the third account of the appellee, as trustee of certain property given by the will of Daniel Stoddard for the benefit of the daughters of the testator. Hearing before Colt, J., who was of opinion that the decree should be affirmed, but, at the request of the appellants, reported the case for the consideration of the full court; such decree to be entered as law and justice might require. The facts appear in the opinion.

Decree affirmed.

A. C Goodell, Jr., for the appellants.

C Sewall, for the appellee.

Morton J. Endicott, J., absent.

OPINION

Morton, J.

One of the appellants, Martha A. Pierce, filed as one of her reasons of appeal that the amounts charged by the trustee for his compensation are excessive. It appeared at the hearing that the appellant and her sister Elizabeth, the other cestui que trust, had great confidence in the appellee and a strong preference for him as trustee, and Elizabeth agreed, in consideration of his assuming the trust, that he should receive for his services three hundred dollars a year, and the appellant ratified this agreement.

Such an agreement with cestuis que trust, who are sui juris and competent to act, is not invalid, if made without fraud or any undue advantage taken of them, and may and should be considered by the court in determining the compensation which the trustee is entitled to charge. In this case, the amounts charged as compensation by the trustee are much less than the agreement contemplated; they are clearly not exorbitant or unconscionable, and we are of opinion that, under these circumstances, the appellant cannot object to them and that they should be allowed. We need not, therefore, consider whether, under the St. of 1877, c. 199, § 3, the appellant can be permitted to reopen the former accounts of the trustee, to any, and if any, to what, extent.

The other reason of appeal filed by all of the appellants raises the question whether the trustee should be charged with the depreciation in value of twenty-nine shares of the capital stock of the Eastern Railroad Company, which at the time of his appointment was a part of the trust estate. In the leading case of Harvard College v. Amory, 9 Pick. 446, the rule in this Commonwealth was held to be that "all that can be required of a trustee to invest is that he shall conduct himself faithfully and exercise a sound discretion. He is to observe how men of prudence, discretion and intelligence manage their own affairs, not in regard to speculation, but in regard to the permanent disposition of their funds, considering the probable income, as well as the probable safety of the capital...