Crocker v. Dillon

• Decision Date: 26 June 1882
• Citation: 133 Mass. 91
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Uriel H. Crocker, trustee, v. James Dillon & others

133 Mass. 91

Uriel H. Crocker, trustee, v. James Dillon & others

Supreme Court of Massachusetts

June 26, 1882

Argued November 18, 1881; March 19, 1880

Suffolk. Bill in equity by Uriel H. Crocker, who had been appointed trustee under the will of James Dillon, and administrator de bonis non, with the will annexed, of the estate of said Dillon, in place of one Rand, executor of, and trustee under, said will, who had been removed from both offices by the Probate Court, against James Dillon, Edward S Dillon, Minnie M. Dillon, Mary E. Brigham, Perry Brigham Salome M. Haven, Mary Dillon, Margaret Dillon and John Dillon, to obtain the instructions of the court, upon these questions:

First. Whether certain bequests to Rand and John Dillon, as trustees, on separate trusts for Mary E. Brigham, Perry Brigham and Salome M. Haven, had been paid to the trustees by Rand as executor.

Second. Whether the plaintiff, as administrator, had power, in case the bequests should be deemed not to be paid, to sell certain land of the testator for the payment thereof, or whether he should hold the land on the trusts.

Third. Whether the plaintiff, as trustee, should, in accounting with James Dillon, one of the residuary cestuis que trust under said will, withhold from his share of income a sum equal to the value of certain property alleged to have been converted by said James to his own use, and of any notes of James held by the plaintiff as trustee.

Fourth. Whether the plaintiff, as trustee, should pay to the residuary cestuis que trust the whole of the net income of the residuary trust fund, and, if so, in what proportions.

The case was heard by Morton, J., on the report of a master and exceptions thereto; and a decree was entered that the bequests for the benefit of Mary E. Brigham, Perry Brigham and Salome M. Haven had been paid in full; that the plaintiff in accounting with James Dillon should withhold from his share of income the sum of $ 2505; and that the trustee was to pay one half of the net income of the residuary trust fund to Minnie M. Dillon, one quarter to Edward S. Dillon, and one quarter to James Dillon.

From this decree, Mary E. Brigham, Perry Brigham, Salome M. Haven and James Dillon appealed to the full court. The facts appear in the opinion.

The case was argued in March 1880, and reargued in November 1881.

Decree affirmed.

H. W. Chaplin, for the plaintiff.

M. Storey, for Mary E. Brigham, Perry Brigham and Salome M. Haven.

W. W. Vaughan, for James Dillon.

H. H. Sprague, for Edward S. Dillon and Minnie M. Dillon.

Endicott, J. W. Allen & C. Allen, JJ., absent.

OPINION

Endicott, J.

Two questions are now presented in this case: First, whether the three legacies named in the will of James Dillon to one Rand and John Dillon, as trustees for Mary E. Brigham, Perry Brigham, and Salome M. Haven respectively, have been paid to the trustees by Rand as executor. Second, whether from the income of James Dillon, who is one of the cestuis que trust under the residuary clause of the will, the plaintiff as trustee can withhold the amount of $ 2505, which James Dillon has converted to his own use from the principal of the trust fund.

James Dillon died in 1872, leaving a will, in which Rand was named executor, and by the terms of the will he was exempted from giving sureties on his bond. The will was admitted to probate in June 1872. Rand accepted the trust, and gave bond without sureties. By this will the testator gave legacies to his two sisters of $ 5000 each; and $ 15,000 in trust to Rand and John Dillon, to pay the income for life to Mary E. Brigham, the principal at her decease to fall into the residue. He also gave to them $ 5000 in trust, the income to be paid to Perry Brigham, until he attained the age of twenty-one years, the principal then to be paid to him, but in case of his death before twenty-one to fall into the residue; and a like sum was given to them upon a similar trust in favor of Salome M. Haven. The residue of the estate was to be divided into six equal parts. One sixth to be paid absolutely to each of his two sons, James and Edward S. Dillon, and the remaining four sixths to Rand and John Dillon in trust, the income thereof to be paid over in equal parts to his three children, James Dillon, Edward S. Dillon, and Minnie M. Dillon, during their lives respectively. And provision was made for the distribution of the principal on the death of each beneficiary.

The will evidently contemplates that one trustee might act, as it gives full power to both trustees, or to the survivor, to deal with the trust estate. John Dillon was never appointed trustee, and his resignation of the trust was filed in the Probate Court, and was accepted on June 7, 1875. Rand was not appointed trustee until June 14, 1875, when he gave bond without sureties under the St. of 1873, c. 122, and received a certificate of appointment from the Probate Court. On the same day that he was thus appointed sole trustee, his first account as executor, filed sometime after January 1875, was allowed in the Probate Court, at the request of James Dillon, Edward S. Dillon and Minnie M. Dillon, without further notice. This account contained no later date than January 7, 1875, and in it Rand credits himself, as executor, with $ 15,000 paid to the trustees of Mary E. Brigham, with $ 5000 paid to the trustees of Perry Brigham, and with $ 5000 paid to the trustees of Salome M. Haven. It is to be remembered that, simultaneously with the allowance of this account, Rand was appointed sole trustee. Previously to June 14, and on that day, Rand had sufficient personal estate in his hands to pay these sums.

Three other accounts, entitled "trustees' first account," signed by Rand and John Dillon, as trustees for the benefit of Mary E. Brigham, Perry Brigham and Salome M. Haven, were allowed by the Probate Court on June 14, with the written assent of the several cestuis que trust. These accounts contained items of income paid over to the several cestuis que trust, as received from the executor from time to time prior to January 1875. The payments were made by Rand alone, John Dillon having taken no active part in the management of the trust before he declined the office. Rand as executor was not bound to pay over these items to himself and Dillon as trustees; but, as these items would be received for the benefit of the beneficiaries, subject only to the contingency that the estate might prove insolvent, the executor might safely advance these amounts, the trustees being liable to return the same, if required by the executor for the payment of debts. But this contingency did not arise, for the estate at that time was perfectly solvent. This course pursued by Rand was in conformity with the decision in Minot v. Amory, 2 Cush. 377. These accounts, therefore, simply show payment to the trustees before their formal appointment, and before the transfer to them, or the survivor of them, of the principal of the trust funds; and it was proper that they should contain the statement, that no other payments had been made to Dillon and Rand as joint trustees. This statement cannot be regarded as contradictory to the statement in Rand's first account as executor, that he had paid over the several sums due to the trustees of Mary E. Brigham, Perry Brigham and Salome M. Haven, for that fact could not appear until Rand had, by an account, discharged himself as executor, by transferring the funds to himself as trustee. Conkey v. Dickinson, 13 Met. 51. Rand in his account as executor credits himself with the several payments made in these so-called trustees' accounts.

A second and final account by Rand as executor, was allowed in the Probate Court, in March 1877, showing his disbursements of all the assets in his hands as executor when the first account was rendered, in which he credits himself with $ 7964.32 paid to the trustees under the will of James Dillon; and, on the same day, the Probate Court allowed a first and second account of Rand as sole trustee, under the residuary clause of the will, for the benefit of James Dillon, Edward S. Dillon and Minnie M. Dillon, in which he charges himself with this sum of $ 7964.32. He filed no accounts as trustee for the Brighams and Salome M. Haven.

It appears by these accounts that Rand had settled the estate, and accounted for all the personal property in his hands as executor, and had paid over to the several trusts of which he was the trustee the several sums to which they were entitled.

In April 1877, he fled from the Commonwealth, and soon after from the United States, having apparently squandered or appropriated to his own use the great bulk of the funds which by his several accounts he held as trustee. Before he left the United States, and while in New Jersey, James Dillon, one of the beneficiaries under the residuary clause, who held a power of attorney from Rand as trustee to manage the trust estate and make payments on account of it, obtained from him a transfer as executor of one hundred and fifty-five shares of the stock of the Boston Wharf Company, which was known by Dillon to be part of the principal of the trust estate held by Rand. By pledging this stock Dillon raised $ 4928; a portion of this he paid to Mary E. Brigham as the income of the trust in her favor, a portion to the account of Edward S. Dillon and Minnie M. Dillon, and the balance of $ 2505 he retained himself. In May 1876, Dillon also obtained from Rand a transfer of twenty shares of stock in the Old Colony Railroad Company, which stood in Rand's name as executor. Dillon sold these shares, and appropriated the proceeds to his own use.

The only personal property of any present value which the plaintiff--who, after Rand's removal, was appointed ...