Daly v. Crawford
| Decision Date | 23 May 1932 |
| Citation | 181 N.E. 396,279 Mass. 262 |
| Parties | DALY et al. v. CRAWFORD |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Middlesex County; Lummus, Judge.
Suit by John F. Daly, as trustee, and Lillian E. Watson, as heir at law, against Seth T. Crawford. The bill was dismissed as to plaintiff Watson, and from a decree for defendant, plaintiff Daly appeals.
Affirmed.
J. F. Daly, of Boston, for appellant.
E. O. Proctor, of Boston, for appellee.
On October 23, 1900, the Probate Court for the county of Middlesex allowed the will of Joseph F. Wilson, late of Somerville, deceased. By the will John B. McKenna, Charles H. Chambers and Frank R. Rogers were made executors and trustees. All the real estate was given by the will to said trustees under a trust which was to continue for ten years from the allowance of the will, and at the expiration of the trust the trustees were directed to divide the trust estate according to the disposition made of the residue of the estate in the residuary clause in the will. By the residuary clause the testator gave the rest and residue to his next of kin and heirs at law as they might be at the time of his death and in the same shares and proportions that they would take under the laws of Massachusetts providing for the disposition of the estate, with certain provisions not material to the decision of this case. Said McKenna, Chambers and Rogers were appointed and qualified as executors and trustees. Rogers died in November, 1904, and McKenna resigned in March, 1906, leaving Charles H. Chambers as sole executor and trustee. A final account of the executors was filed on April 12, 1907, but never was allowed. Charles H. Chambers continued to be trustee until his death on March 17, 1925. At that time he was a resident of the State of New York. Under G. L. c. 203, § 5, the plaintiff Daly was appointed and qualified as trustee in his place.
On June 11, 1929, the plaintiff Daly, as trustee, and the plaintiff Lillian E. Watson, as heir at law, brought this suit to compel the defendant to account for $61,000 alleged to have been received by him as trustee from the sale of certain real estate of the estate of Joseph F. Wilson, decased. The defendant demurred to the bill of complaint and assigned as reason therefor the misjoinder of the plaintiff Lillian P. Watson. On July 24, 1929, the plaintiff Watson moved that the bill of complaint ‘be dismissed as to her.’ This motion was allowed.
The answer of the defendant sets up the following facts which are not disputed by the plaintiff: From November, 1918, until February 22, 1920, the defendant and one Ruby were copartners in the practice of law, in Boston. During this period the firm, and the defendant as a member thereof, were employed as attorneys for Charles H. Chambers of New York, trustee under the will of Joseph F. Wilson, deceased, in connection with various matters, including the sale of a large amount of real estate and leaseholds situated in the vicinity of Boston. After Ruby's death the defendant continued in the employ of said Chambers. On Rogers, a member of the bar of this Commonwealth, was general attorney and agent for said Chambers, trustee, in connection with various matters including the sale of a large amount of real estate. In the absence of Rogers on military service his wife, Louise Rogers, who was associated with her husband, acted in his place as general attorney and agent for said Chambers, trustee, and collected the rents and attended to details.
The presiding judge in the Superior Court, sitting without a jury, without a report of the evidence made a full finding of facts, the substance of which is as follows: During the summer of 1919, the trust estate was in bad condition. Many parcels of real estate had been suffered to be sold for taxes, many tax titles were outstanding and it was possible some had become unredeemable. A sale of the real estate was necessary for its preservation. At that time the trustee Chambers employed the firm of Ruby & Crawford to make a sale of the trust real estate or so much of it as could readily be sold. Mrs. Rogers, with the approval of the trustee, with her own money bought a large number of tax titles and procured customers for some of the property. The decree on which the sale was founded was entered in the Probate Court October 24, 1919, on the petition of Charles H. Chambers, as surviving trustee under the will of Joseph F. Wilson. The petition recited that the trustee held for the benefit of certain persons fifty-six parcels of real estate therein described; and prayed that he might be ordered to convert the said trust estate into cash, and that distribution of the same might be decreed by the court among such persons as might be proved to be entitled thereto according to law. The persons named as beneficiaries in the petition were those who then held the beneficial interest under the residuary clause of the will. The decree ordered said trust estate, describing the fifty-six parcels shown in the petition, converted into cash and the proceeds distributed in certain proportions set forth in the petition and the decree. The decree recites that all persons interested assent to the petition and that no party objects thereto, and there were filed with the petition assents in writing by all persons interested.
The judge found that in obtaining this decree, Ruby & Crawford represented the petitioning trustee; that the firm of Ruby & Crawford was concerned in but one sale of real estate; that it disposed of forty-five different parcels of real estate for the price of $60,275, and of this amount Mrs. Rogers, assuming to represent the trust estate in negotiating the sale, received $3,000 as advance deposit from the agreed purchasers leaving a balance of $57,275. It was agreed by the parties to this suit that only $31,691.98 ever came into the hands of the defendant, although an additional sum of $112.33 came into his hands by reason of a rebate of taxes. At the trial in the Superior Court the plaintiff disclaimed any attempt to charge the defendant with more than $31,804.31 shown by the answer as having been received. Of this $31,804.31 the judge found that, in...
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