Donnelly v. Alden
| Decision Date | 04 January 1918 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | ANNIE J. DONNELLY & others v. FREDERICK L. ALDEN. FREDERICK L. ALDEN & others v. FRANCIS J. DONNELLY & others. |
November 7, 1917.
Present: RUGG, C.
J., BRALEY, CROSBY PIERCE, & CARROLL, JJ.
Executor and Administrator, Notice. Equity Jurisdiction, To set aside mortgage, To rescind sale induced by fraud, To establish trust, To recover money wrongly paid by executor.
In a suit in equity, by certain minors entitled to the remainders under a trust created by a will, to set aside a mortgage made by the former executors of the will, acting as trustees, to the defendants, who were a firm of wholesale shoe dealers, to secure the payment of the indebtedness of the executors to the defendants for shoes sold to the executors while they were carrying on the retail shoe business of the testator after his death in the name of his estate, it appeared that the executors were not authorized to carry on the business of the testator, but that the managing executor had represented to the defendants that they had such authority, and that when the defendants later discovered the executors' want of authority and the deceit practiced upon the defendants by the managing executor, instead of rescinding the sale and demanding back their goods, they took from the executors as trustees a mortgage of the real estate of the testator as security for their account against the executors. The trial judge found that, as to the goods shipped by the defendants after the testator's death, they did not suspect and had no reason to suspect any breach of trust. Held, that the defendants, knowing of the death of the testator, ought to have inspected the probate records, which would have shown them that the executors had no authority to conduct the business and would have led to the further discovery that the persons interested in the remainder were minors and that the finding of the trial judge as to the actual state of mind of the defendants was immaterial, and accordingly that the mortgage must be set aside.
With the suit described above was tried a suit by the members of the firm of wholesale shoe dealers, the defendants in the first case against the administrators de bonis non of the estate of the testator to impress a trust for their claim upon the funds remaining in the hands of the administrators de bonis non. There was no finding that the goods furnished by the firm which were in the store when the administrators de bonis non took possession could be identified, and the evidence indicated that, although these goods might have been identified and separated, this was not done and it appeared that afterwards all the goods in the store, including these and all the others, were sold for a single price. Held, that it was too late for the members of the firm to attempt to rescind their sales of goods, or, if they could have rescinded the sales, to follow the goods or their proceeds.
In a cross bill filed by the administrators de bonis non, who were the defendants in the suit described above, in which the remaindermen joined through their guardian ad litem, it was sought to compel the firm of wholesale shoe dealers to repay the amount of the money paid to them by the former executors without authority on the principle of Hines v.
Levers & Sargent Co. 226 Mass. 214 . The trial judge was "not satisfied that the business was conducted by the executors at a loss." Held, that, if there was no loss, there was no debt to the estate to be paid, and that the cross bill must be dismissed.
BILL IN EQUITY, filed in the Superior Court on May 23, 1916, by the three minor children of Francis J. Donnelly, grandchildren of Peter Donnelly, late of Lynn, and the beneficiaries in remainder under his will, against Frederick L. Alden, as mortgagee for the benefit of the firm of Alden, Walker and Wilde, wholesale shoe dealers, seeking to cancel a mortgage alleged to have been given without authority by Anne Donnelly and Francis J. Donnelly, as trustees under the will of Peter Donnelly, to secure an indebtedness for shoes sold and delivered to them by the said firm, the indebtedness thus attempted to be secured being the personal indebtedness of Francis J. Donnelly or of him and Anne Donnelly and not the indebtedness of the trust estate; also a
BILL IN EQUITY, filed in the Superior Court on August 2, 1916, by the members of the firm of Alden, Walker and Wilde, against the administrators de bonis non with the will annexed of the estate of Peter Donnelly, seeking to impress a fund of $11,000 in the hands of such administrators with a trust to the extent of $4,259.91 for the benefit of the plaintiffs to satisfy their claim for the price of shoes sold and delivered to the estate of Peter Donnelly, induced by the false representations of Francis J. Donnelly that he or he and Anne Donnelly had authority to carry on the shoe business in behalf of that estate; also a
CROSS BILL IN EQUITY, filed on October 2, 1916, by the defendants in the suit brought by the members of the firm of Alden, Walker and Wilde, in which the administrators de bonis non with the will annexed of the estate of Peter Donnelly sought to recover the amounts of money paid without authority to the said firm by Francis J. Donnelly and Anne Donnelly out of the estate of Peter Donnelly.
The three cases were heard together by Fox, J. He made a memorandum of findings, including the findings which are stated and described in the opinion. The judge ordered that there should be decrees for the plaintiffs in each of the first two suits and that the cross bill should be dismissed.
Later by order of the judge final decrees were entered, ordering that in the first suit the mortgage should be cancelled, that in the second suit the plaintiffs' claim was established in the sum of $4,259.91 and that the fund of $11,000 in the hands of the administrators de bonis non was impressed with a trust to that extent, and that the cross bill should be dismissed. An appeal was taken from each of the decrees.
H. D. Linscott, (J.
J. Doherty with him,) for Annie J.
Donnelly and others.
E. J. Flynn, (W.
J. Holbrook with him,) for Frederick J.
Alden and others.
These are suits growing out of the estate of the late Peter Donnelly, hereafter called the testator. He died in July 1914, a resident of Lynn. By his will he gave all his property to trustees, who also were executors, in effect upon the trust to pay the income to his widow, Anne, during her life, and thereafter to his son, Francis, during his life the principal then to go to the children of Francis, all of whom are now minors. The testator's property consisted in part of two parcels of real estate and two retail shoe stores in Lynn. The stores had been prosperous. Francis, who had assisted the testator in the stores, continued to carry on the business without change with the assent of his mother after the testator's death. Although the same persons were named as executors and trustees, they are liable in the former capacity under the facts here disclosed. Welch v. Boston, 211 Mass. 178 , 181. The defendants Alden, Walker and Wilde, hereafter called the firm, were shoe manufacturers who had...
To continue reading
Request your trial