Cutter v. Burroughs

• Citation: 61 A. 767,100 Me. 379
• Parties: CUTTER et al. v. BURROUGHS et al.
• Decision Date: 06 July 1905
• Court: Supreme Judicial Court of Maine (US)

61 A. 767

100 Me. 379

CUTTER et al.

v. BURROUGHS et al.

Supreme Judicial Court of Maine.

July 6, 1905.

The executrix named in said will duly qualified as such, but died a little more than a year after such qualification, and her account as such executrix was duly settled by her administratrix. After the death of said executrix, one Celina Purington was appointed and qualified as guardian of the aforesaid Marie J. Purington, who was then 12 years of age. Said guardian resigned her said trust about a year after her appointment, and thereupon William W. Cutter, one of the plaintiffs, was duly appointed and qualified as guardian of said Marie J. Purington, who was then 13 years of age. Said Marie died on the 17th day of April, 1900, at the age of 19 years, without leaving issue.

From the time of the death of the aforesaid executrix no legal representative of the estate of the said Helen J. Purington was appointed until after the death of the said Marie J. Purington.

After said William W. Cutter was appointed guardian of said Marie J. Purington, he proceeded to act under item 4 of the will in precisely the same manner that he would have done, had he been appointed as trustee to carry out the provisions of said fourth item. That he had no legal authority to do so is not denied. But he contended that he did in his capacity as guardian precisely what he should have done, had he been appointed trustee to execute the power and trust of item 4; that, in disposing of the income and principal of the estate, he faithfully observed the directions of the will; and that the quantity and quality of the estate left in his hands as guardian was exactly as it would have been, had he acted as trustee, instead of guardian—that is, so far as the disposal of the estate was concerned, he applied it to the use of Marie, his ward, precisely as her mother directed and commanded it should be used.

After the plaintiff Cutter, acting under the advice of counsel and by authority of probate court, had made sales of the real estate named in said item, and transacted all the business of the estate, in his capacity as guardian of Marie, it appeared, upon a legal investigation and the discovery of a question of sufficient doubt as to the legality of his acts as to require a decision of the law court, that the title of the real estate devised did not vest in Marie in fee simple, but was contingent, and therefore that all the sales made by Cutter as guardian were without authority and void. The several plaintiffs, who purchased and paid for this real estate, did services, or expended money for the benefit of Marie under item 4 of the will, then asked to be subrogated to her rights in her mother's estate under said item. Held:

(1) That the testatrix by item 4 of her will created an imperative power and trust duty, and not a mere naked and discretionary power.

(2) That a power coupled with a trust of this kind, being imperative, must be executed that the courts will not allow such a trust to fail of execution when by any possible means it can he executed by the court itself; that the court will act retrospectively and in the face of the greatest difficulties to accomplish this object.

(3) That, this imperative power having failed of a legal execution, the title to the property, which should have been applied for the benefit of Marie, passed to the devisees and heirs of the decedent.

(4) That the devisees and heirs did not take this property freed from the trust, but received it charged with a resulting trust and equitable lien in favor of the beneficiary.

(5) That therefore the plaintiffs, who have in effect furnished their money and services in good faith, and not as mere volunteers for the support and maintenance of the beneficiary, which support the land was charged with the burden of furnishing, are entitled to be subrogated to the rights of the beneficiary therein, and have a lien thereon.

See Hersey v. Purington, 51 Atl. 865, 96 Me. 166.

(Official.)

Report from Supreme Judicial Court, Cumberland County, in Equity.

Bill by William W. Cutter and others against one Burroughs and others. Case reported to the law court Decree for plaintiff.

Bill in equity seeking to enforce the execution of an imperative power and trust after the death of the beneficiary, which failed of legal execution for want of a trustee, in behalf of the plaintiffs who have contributed their money and services to furnish the support and maintenance to the daughter of the testatrix, which should have been furnished by the property devised in trust for that purpose under the terms of the will, and to effect such execution of the trust in behalf of the plaintiffs by subrogating their claim to the rights of the beneficiary in such property and charging the same with a resulting trust and equitable lien in their favor.

When this cause came on to be heard before the justice of the first instance, on bill, answer, and evidence, it was agreed that the cause should be reported to the law court for hearing and decision.

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, PEABODY, and SPEAR, JJ.

Robert Treat Whitehouse, for plaintiffs. F. M. Ray, Foster & Hersey, and William M. Ingraham, for defendants.

SPEAR, J. This is a bill in equity, seeking to enforce the execution of an imperative power and trust after the death of the beneficiary, which has failed of legal execution for want of a trustee, in behalf of the plaintiffs, who have contributed their money and services to furnish the support and maintenance to the daughter of the testatrix which should have been furnished by the property devised in trust for that purpose under the terms of the will, and to effect such execution of the trust in behalf of the plaintiffs by subrogating their claim to the rights of the beneficiary in such property and charging the same with a resulting trust and equitable lien in their favor. The facts are as follows: On the 9th day of June 1892, Helen J. Purington, of Westbrook, died leaving a will dated November 12, 1891. Item 4 of the will is all that it is necessary to quote, as no question is raised as to the devisees and heirs to whom the residue of the estate should go after discharging the obligations imposed by the power and trusts commanded by said item. It reads as follows: "I order and direct my executrix herein named to apply all or whatever is necessary of the rents, profits, and income of my real and personal estate to the support and education of my daughter, Marie J. Purington, giving her a high school, and, if she desires, a seminary or collegiate, education; and, should the rents, profits, and income of my estate, real and personal, prove insufficient for that purpose, I order and direct my executrix to first sell the real estate situated on the westerly side of Spring street, in said Westbrook; and after the proceeds of the same shall have been applied to the support, clothing, and education as aforesaid of my said daughter, Marie J., should they prove insufficient, I order and direct my executrix to next sell the house and lot situated on Stroudwater street, near the P. & R. Railroad; and, should that also prove insufficient for said purposes, I order and direct my executrix to sell the house and lot situated at the corner of Main and Stroudwater streets, being the one in which I now live; and it is my wish and desire, and I so order and direct, that nothing contained in the second provision herein made shall prevent or in any way interfere in my executrix disposing of the whole of my estate, real, personal, and mixed, for the support, clothing, and education as aforesaid of my said daughter, Marie J. Purington." The will also appointed Dora Purington sole executrix without bond. On the 20th day of September, 1892, the will was proved, and Dora Purington was duly qualified as executrix.

Dora Purington entered upon the performance of her duties as executrix, but died on the 6th day of November, 1893. Celina Purington, her mother, was appointed administratrix de bonis non of Dora Purington on the first Tuesday of March, 1894, and settled the account of Dora Purington as executrix of the estate of Helen J. Purington on the third Tuesday of April. 1894.

On the first Tuesday of April, 1893, Celina Purington was appointed and qualified as guardian of Marie J. Purington, who was then 12 years old, and on the 29th day of the following March settled her first account, and her resignation was filed and accepted on the 5th day of April, 1894.

On the same day, the plaintiff William W. Cutter was duly appointed and qualified as guardian of the said Marie, now 13 years of age. Marie died on the 17th day of April 1900, at the age of 19 years, without leaving issue. From the time of the death of Dora Purington, executrix of said will, November 6, 1893, no legal representative of the estate of Helen J. Purington was appointed up to the 17th day of July, 1900, when O. H. Hersey, of Portland, was duly appointed administrator de bonis non with the will annexed of said Helen J. Purington.

After the plaintiff William W. Cutter was appointed guardian of Marie J. Purington, he proceeded to act under item 4 of the will in precisely the same manner that he would have done, had he been appointed as trustee to carry out the provisions of said item. That he had no legal authority to do so is not denied. But it is earnestly contended that, having done through a mistake of his legal duty just what he could and should have done, had he been in the discharge of the duty imposed by the will, he should not now be made to suffer and others to profit. In other words, he contends that he has done in his capacity as guardian precisely what he should have done, had he been appointed trustee to execute the power and trust of item 4; that, in disposing of the income and principal of the estate, he faithfully observed the directions of the will, and that the quantity and quality of the...