Burroughs v. Wellington

• Decision Date: 21 May 1912
• Citation: 98 N.E. 596,211 Mass. 494
• Parties: BURROUGHS v. WELLINGTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

211 Mass. 494

98 N.E. 596

BURROUGHS v. WELLINGTON et al.

Supreme Judicial Court of Massachusetts, Norfolk.

May 21, 1912

COUNSEL

E. M. Bennett, of Boston, for appellant.

F. H Noyes, of Boston, for appellees.

OPINION

The following is decree by Rugg, C.J.

'These appear as two cases upon the docket. But they are really different steps in one case. The petitioner brought in the probate court a petition for instructions as to his duty as trustee under a written instrument. Upon this petition notice issued and parties appeared, hearing was had, and decree was ready for signature but not entered. Thereafter the petitioner moved that the petition be dismissed or that he be allowed to withdraw it, no reason being assigned therefor in the motion. A decree was entered denying this motion. The petitioner appealed from this decree. This appeal is case 344. Under these circumstances the petitioner had no absolute right to have his petition dismissed. Upon the petition for instructions a decree was entered to the effect that the petitioner account for the funds in accordance with the terms of the will. From this decree he appealed and this appeal is case 343.

'From the allegations in the bill it appears that the petitioner has received equal sums of money for the benefit of each of the respondents under the will of Jennie G. Greene, the sums to be paid as they severally reached the age of twenty-five years. Each of the beneficiaries has now reached the age when the money should be paid to him. The trust should be ended. There is no doubt as to the duty of the petitioner to make immediate payment of the money in his hands to these two beneficiaries. Under the terms of the will, each is entitled to one thousand dollars with its accumulations. The provisions of the will are plain in this respect. There appears to have been no occasion for an appeal by the petitioner from the decrees of the probate court. All the parties having any interest in that trust were before that court, and were ready to abide by its decision, which would have protected the petitioner fully. The petitioner is a fiduciary, and should be held to the high standard of fidelity which is established for trustees. He does not stand on the footing of an ordinary litigant. He is entitled to no costs out of the fund, and personally he should pay costs of the respondents in this court to be taxed as an action at law.

'Let decree be prepared accordingly.'

BRALEY J.

The appellant who is the duly appointed trustee under the will of Jennie G. Greene, petitioned the probate court for instructions as to the construction of the fifteenth article which created the trust and whether certain funds received by him were within its terms. It appears that all persons interested were duly notified, and when the adverse decree ordering him to account was ready for the signature of the judge, the petitioner moved to dismiss, or to be allowed to withdraw the petition. The motion having been disallowed, and the decree entered he appealed to this court, and assigned as the reason of appeal that 'in the case of a petition for instructions by a trustee under a will, such trustee is entitled as of right before a decree has been made thereon, to have such petition dismissed upon his petition therefor.' A trustee who desires instructions as to the administration of the trust should proceed by a bill in equity in the regular form, if suit is begun in this court, or in the superior court. Gibbins v. Shepard, 125 Mass. 541; Swasey v. Jaques, 144 Mass. 135, 10 N.E. 758, 59 Am. Rep. 65; Rev. Laws, c. 159, §§ 1, 10. But if he resorts to the probate court under Rev. Laws, c. 162, § 5, while he must proceed by petition, the proceedings are still in equity, and are governed by our rules of equity practice and procedure. Green v. Gaskill, 175 Mass. 265, 56 N.E. 560; Sibley v. Maxwell, 203 Mass. 94, 106, 107, 89 N.E. 232. The petition being in the nature of a bill of interpleader to enable the trustee to obtain instructions as to the...