Dodge v. Dodge

• Decision Date: 25 March 1939
• Docket Number: No. 3393.,3393.
• Citation: 102 F.2d 703
• Parties: DODGE et al. v. DODGE et al.
• Court: U.S. Court of Appeals — First Circuit

102 F.2d 703 (1939)

DODGE et al. v. DODGE et al.

No. 3393.

Circuit Court of Appeals, First Circuit.

March 25, 1939.

Edward W. Bradford, of Providence, R. I. (Henry M. Boss and Arthur Cushing, both of Providence, R. I., on the briefs), for appellants.

Sumner H. Babcock, of Boston, Mass. (Bingham, Dana & Gould, of Boston, Mass., on the brief), for appellees.

Before BINGHAM and WILSON, Circuit Judges, and PETERS, District Judge.

WILSON, Circuit Judge.

This is an appeal from a decree of the District Court of Massachusetts dismissing a bill in equity brought by Charles J. Dodge, Samuel R. Dodge and Helen F. Ernst, each of the town of Barrington in the County of Bristol in the State of Rhode Island, against Frank C. Dodge of the town of Wareham in the County of Plymouth in the Commonwealth of Massachusetts, and Jeanne Dodge, wife of the said Frank C. Dodge, of said Wareham, now commorant in the Republic of France, Lester W. Jenney of the town of Mattapoisett in said County of Plymouth in said Commonwealth of Massachusetts, and The Hills Brothers Company, a corporation organized and existing under the laws of New York and located and doing business in the town of Plymouth in said Commonwealth, a citizen of the State of New York, within the meaning of the laws fixing and determining the jurisdiction of this court of the parties to this suit. The bill seeks to compel The Hills Brothers Company to restore certain real estate situated in the town of Wareham in the Commonwealth of Massachusetts to the plaintiffs and said Frank C. Dodge, as heirs at law of the late John W. Dodge.

The facts leading up to the suit are as follows: In 1929 John W. Dodge, the father of Charles J. Dodge, Samuel R. Dodge, Helen F. Ernst and Frank C. Dodge, was the owner of certain parcels of real estate and personal property partly located in Wareham in said Commonwealth and in part in Barrington in the State of Rhode Island. On April 26, 1929, John W. Dodge, then nearly eighty years of age and somewhat infirm physically, but of sound mind, conveyed to his two sons, Charles J. Dodge and Frank C. Dodge, all his real estate situated in the Commonwealth of Massachusetts or in the State of Rhode Island, and all his personal property, and at the same time Charles J. Dodge and Frank C. Dodge executed a declaration of trust by which they agreed to hold said property in trust for the benefit of said John W. Dodge.

The provisions of the declaration of trust pertinent to this suit are as follows: The trustees may carry on the cranberry business heretofore conducted by John W. Dodge and farm and cultivate the real estate held by them. They may sell or exchange any or all of the trust property on such terms as they see fit. They may make any contracts they see fit concerning the same.

The trustees in all respects to have as full power over the trust property as if they were the actual owners thereof, the scope of this general power being in no way limited by the specific powers therein enumerated. The trustees' decision in all transactions involving the exercise of their discretion shall be binding on the world, even if they or any of them have a personal interest in the exercise of such discretion.

No trustee shall be responsible, except for a wilful breach of trust, and no trustee shall be responsible except for his own acts.

Either trustee may resign at any time and the beneficiary may in his sole discretion remove any trustee and may fill any vacancy created by the resignation or removal of that trustee, and may alter or amend the declaration of trust and may authorize or direct any action on the part of the trustees within the scope of the powers herein vested in them. A removal of a trustee and any resignation of a trustee shall be in writing signed and acknowledged by the beneficiary, or by the trustee who resigned. No such action by the beneficiary and no resignation by a trustee shall be effective until recorded in the Registry of Deeds for the said County of Plymouth in the Commonwealth of Massachusetts and in the Town Hall of Barrington in the State of Rhode Island.

The declaration of trust was duly executed by Charles J. Dodge and Frank C. Dodge and John W. Dodge also signed the declaration of trust, signifying his assent and approval of its terms, April 26, 1929.

The first action by John W. Dodge which led up to this suit was taken on or about November 1, 1929, when John W. Dodge, acting under the clause of the declaration of trust empowering him to remove one of the trustees in his sole discretion, removed Charles J. Dodge by a written statement signed and acknowledged by him, which written statement was recorded in the Registry of Deeds for Plymouth County in Massachusetts, and in the Town Hall of Barrington in the State of Rhode Island, as required in said declaration of trust, and thereafter Frank C. Dodge, the remaining trustee, managed the trust property alone. What led John W. Dodge to remove Charles J. Dodge as one of the trustees does not clearly appear, although it is intimated some friction had developed between him and his father.

On August 19, 1930, John W. Dodge, the beneficiary, delivered an instrument in the form of a letter, which, however, he acknowledged before a notary public, to Frank C. Dodge, which reads as follows:

"Under the provisions of Paragraph (sic) 6, 7 and 8 of the declaration of trust for my benefit dated April 26, 1929, and recorded in Plymouth County Registry of Deeds in Book 1574, Page 523, I hereby authorize and empower you as trustee to convey to Jeanne Dodge (the trustee's wife) of said Wareham, free and clear of the provisions and terms of this trust, but subject, however, to any mortgages outstanding of record upon the land hereafter described, All my cranberry bogs in Wareham, Plymouth County, Massachusetts, located on both sides of the Marion Road," and more particularly described in the letter to Frank C. Dodge, but subject to an undivided half interest in John W. Dodge for life.

On the same day, August 19, 1930, Frank C. Dodge granted and conveyed to said Jeanne Dodge, his wife, of said Wareham, with trustee's covenants, the same property described in the letter from John W. Dodge to Frank C. Dodge, and a part of the premises conveyed by John W. Dodge to Charles J. Dodge and Frank C. Dodge in trust April 26, 1929. The grant to Jeanne Dodge by Frank C. Dodge, sole trustee, was made subject to an undivided one-half interest for life in and to John W. Dodge.

On the same day Jeanne Dodge granted the same premises to her husband, Frank C. Dodge, as an individual, subject to an undivided one-half life interest in John W. Dodge.

On October 16, 1930, by a practically identical form of letter from John W. Dodge to Frank C. Dodge, sole trustee, the latter was authorized to convey to Jeanne Dodge, his wife, free and clear of the provisions of the trust, but subject to any outstanding mortgages of record, and to an undivided one-half interest for life in John W. Dodge, all the real estate in Massachusetts, a part of the trust estate including certain uplands surrounding the cranberry bogs. At the same time Jeanne Dodge conveyed the same property to Frank C. Dodge as an individual.

As a result of these conveyances all the Massachusetts real estate formerly belonging to John W. Dodge and granted in trust to Charles J. Dodge and Frank C. Dodge now appeared of record in the name of Frank C. Dodge as an individual. On June 15, 1931, Frank C. Dodge and Jeanne Dodge conveyed to Lester W. Jenney the cranberry bogs and uplands to which Frank C. Dodge had acquired the record title by virtue of the above conveyances. John W. Dodge also signed the deed to Jenney, which contained the following provisions:

"I, John W. Dodge, being unmarried, release to the grantee my life interest and any interest I may have as beneficiary under any trust agreement or otherwise in the above granted premises."

This deed was duly acknowledged by the grantors and recorded June 17, 1931. On June 15, 1931, payment was made by Jenney in part by a purchase money mortgage for $36,600 to Frank C. Dodge as an individual which was duly recorded June 17, 1931.

On June 30, 1932, Lester W. Jenney conveyed a part of the real estate described in the above deed to him — consisting chiefly of the cranberry bogs — to The Hills Brothers Company, the other defendant in this case which now claims title to land described in Jenney's deed to it.

The defendants answered admitting the several conveyances described above, but setting forth numerous legal proceedings, which it is alleged by the defendants were brought for the purpose of harassing John W. Dodge during his lifetime.

Charles J. Dodge was removed as trustee on November 1, 1929, and Frank C. Dodge was appointed, or thereafter continued to act as sole trustee. On July 19, 1930, Charles J. Dodge, Samuel R. Dodge and Helen F. Ernst filed a petition in the Rhode Island Probate Court in Barrington for the appointment of a guardian of the person and estate of John W. Dodge, alleging that he was a person of unsound mind; a person who from want of discretion in managing his estate, so spends, wastes, or lessens his estate, or is likely to do so, that he may bring self and family to want or suffering, or render self or family chargeable upon the town for support.

On September 16, 1930, the Probate Court entered a decree stating that after due consideration of the evidence and an examination of John W. Dodge, "he was adjudged competent to administer his estate." The petition was denied and no appeal was taken from the decree.

On September 15, 1930, the plaintiffs, Helen F. Ernst and Samuel R. Dodge, brought a bill in equity against John W. Dodge and Frank C. Dodge in the Rhode Island court alleging John W. Dodge was in feeble bodily health; that Charles J. Dodge was improperly discharged as trustee of his estate; that John W. Dodge had disposed of his property in event of his death by...