Burpee v. Burpee

• Decision Date: 10 October 1912
• Citation: Burpee v. Burpee, 109 Me. 379, 84 A. 648 (Me. 1912)
• Parties: BURPEE v. BURPEE et al.
• Court: Maine Supreme Court

84 A. 648

109 Me. 379

BURPEE

v. BURPEE et al.

Supreme Judicial Court of Maine.

Oct. 10, 1912.

Appeal from Supreme Judicial Court, Knox County, at Law.

In the matter of the estate of Samuel H. Burpee, deceased. From a decree appointing Samuel A. Burpee trustee under decedent's will, John A. Burpee appeals. Appeal dismissed, and decree affirmed.

Argued before WHITEHOUSE, C. J., and SAVAGE, SPEAR, KING, BIRD, and HALEY, JJ.

R. I. Thompson, of Rockland, for appellant.

E. B. Burpee, of Rockland, for appellees.

WHITEHOUSE, C. J. This is an appeal from a decree of the judge of probate of Knox county, appointing the appellee Samuel A. Burpee trustee under the will of his father, Samuel H. Burpee, who died testate in May, 1906, leaving six children, four sons and two daughters. The second and fifth items of the will are as follows:

"Second—I give, bequeath and devise, in trust, for and during the term of ten years after my decease, to my sons, Oharles E., Samuel A., Richard H., and John A. Burpee, all the real estate that I may own or die possessed of, and all the stock that I own or may own in the N. A. & S. H. Burpee Furniture Company, to have, to control, and manage, giving unto the said trustees the authority to sell, if in their judgment it shall be necessary, all and any of the property thus conveyed, in trust, for the use and benefit of all my children, viz.—the aforesaid Charles E., Samuel A., Richard H., and John A. Burpee and my daughters Annie T. Tyler and Kittle B. French.

"Said trustees are hereby charged to distribute annually the rents, profits and income of all the estate hereby conveyed in trust, in equal proportions, to each of my said children during the term, and at the termination of said trust, I hereby give, bequeath and devise all the estate herein conveyed in trust in equal parts to the said Charles E., Samuel A., Richard H., and John A. Burpee, in fee simple and absolutely share and share alike."

"Fifth—I hereby nominate and appoint my sons, Samuel A. Burpee, Charles E. Burpee, Richard H. Burpee and John A. Burpee, executors of this will and hereby direct that no bond be required of them, nor shall they be required to return inventory or settle account in either capacity as executors or as trustees."

It appears that the estate consisted of 120 shares of the capital stock of the N. A. & S. H. Burpee Furniture Company, and an undivided half of a brick block on Main street in Rockland; and it was claimed in behalf of the appellee, and there was evidence tending to show, that the business of the Furniture Company was so thoroughly organized, and systematically conducted, by an experienced and competent manager, that ordinarily the only service required of the trustee, in practically discharging the trust after the death of the testator, was to collect the income and disburse it according to the terms of the will.

The four sons named in the will as executors and trustees never qualified as trustees by giving bonds as required by statute, and their nomination as trustees was never confirmed by the judge of probate. But, during the four years succeeding the death of the testator, the affairs of the estate appear to have been managed by the appellee Samuel A. Burpee, with the acquiescence of his co-executors, except that in March, 1907, a power of attorney was given to the appellant by the executors to collect and distribute the income of the estate; but this was surrendered by the appellant not long thereafter, upon complaint of the coexecutors that he had exceeded his authority thereunder and abused his trust.

Soon after the withdrawal of this power of attorney, the appellant and his bro...