Feeney v. Feeney

• Decision Date: 07 March 1957
• Citation: 335 Mass. 534,140 N.E.2d 642
• Parties: Marcellus B. FEENEY v. Katherine L. FEENEY, individually and as executrix.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 642

140 N.E.2d 642

335 Mass. 534

Marcellus B. FEENEY v. Katherine L. FEENEY, individually and as executrix.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Jan. 8, 1957.

Decided March 7, 1957.

Harold S. R. Buffinton and Ray C. Westgate, Fall River, for plaintiff, submitted a brief.

Edward B. Hanify, Boston (Donald R. Grant, Boston, and George L. Sisson, Fall Rive, with him), for defendants.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE and CUTTER, JJ.

CUTTER, Justice.

The plaintiff by this bill in equity filed on September 8, 1953, in the Superior Court seeks to enforce an alleged oral trust of personalty, and to obtain an accounting under that trust, against the defendant, who is a resident of Rhode Island, individually and as executrix of the will of Cyril M. Feeney, late of Tiverton, Rhode Island, appointed by the Probate Court for Bristol County, This appointment is shown by the evidence introduced at the hearing on the pleas mentioned below to have been an ancillary appointment, an appointment having previously been made at the testator's domicil in Rhode Island. The defendant, as an individual and as Massachusetts executrix, appeared specially and filed demurrers, pleas in bar and pleas to the jurisdiction the grounds of which are discussed below. Interlocutory decrees were entered overruling the plea to the jurisdiction filed by the defendant individually and sustaining both the defendant's demurrers, both the defendant's pleas in bar, and the plea to the jurisdiction filed by the defendant as executrix. The case is here (a) on the plaintiff's appeal from these decrees, so far as adverse to him, and from the final decree dismissing the bill, and (b) on the defendant's appeal from the final decree so far as it was not based upon the lack of jurisdiction in the Superior Court over her or her property and from the interlocutory decree overruling her plea to the jurisdiction.

The bill alleges that, 'at some time or times, the exact dates of which the plaintiff is ignorant, but particularly during the years 1934, 1935 and 1936 and thereabout,' one Martin Feeney, the plaintiff's father, transferred 'substantial sums of money and securities,' owned by him prior to his death, to the defendant and Cyril M. Feeney, the husband of the defendant and a son of Martin. Martin died November 25, 1937, and Cyril died December 12, 1946. It is alleged further that Martin directed the defendant and Cyril 'to make certain investments, to purchase certain annuities, and to * * * pay over the same in equal shares to * * * Cyril * * * and the plaintiff'; that the defendant and Cyril 'accepted said securities and cash as trustees and agreed with * * * Martin * * * so to do '; that the defendant and Cyril delivered certain annuities to the plaintiff but have failed to account for and deliver to the plaintiff is one-half share of the cash and securities; and that the defendant, individually and as executrix, holds cash and securities (and the proceeds and income thereof) in trust for the plaintiff but has neglected to account for them.

The real estate held by the defendant individually in the Fall River registry district of Bristol County was attached. Substituted service of an order of notice upon the defendant individually ¹ was effected in Rhode Island, and a subpoena was served upon her as executrix by service upon her agent for service listed in the Bristol County registry of probate.

In considering the pleas to the jurisdiction and the pleas in bar, the trial judge received in evidence only certified copies of (a) the will of Cyril M. Feeney, the petition for proof of the will in Massachusetts, the decree of the Probate Court for Bristol County appointing the defendant as executrix, her appointment of a resident agent, and her bond, and (b) the substantially similar papers of record in the Probate Court for the town of Tiverton, Rhode Island, together with a petition filed by the plaintiff there, apparently in 1948, for leave to file late a claim as creditor of the estate of Cyril, on which no action had been taken except periodic continuances. The trial judge found the facts to be as represented in these documents.

1. We consider first the pleas to the jurisdiction. The bill alleges that the defendant individually and 'as executrix as aforesaid' (that is, by virtue of her appointment in Massachusetts) holds 'cash and securities delivered by Martin Feeney * * * in trust for the * * * plaintiff * * * and proceeds of such cash and securities and income thereon.' This allegation sets out, more specificially than that held insufficient to Lowe v. Jones, 192 Mass. 94, 102, 78 N.E. 402, 6 L.R.A.,N.S. 487, that the defendant as executrix in Massachusetts holds in Massachusetts specific securities originally transferred to her and her testator in trust. For purposes of the pleas to the jurisdiction the allegation must be taken as true except as found to be false on the basis of evidence introduced in support of the pleas.

(a) The evidence relevant to the plea to the jurisdiction filed by the defendant as Massachusetts executrix shows that she was only an ancillary executrix here and, therefore, accountable here only for assets of Cyril's estate received by her in Massachusetts and not for assets received by her as domiciliary executrix. See Fay v. Haven, 3 Metc. 109, 114; Cowden v. Jacobson, 165 Mass. 240, 240, 43 N.E. 98; Kennedy v. Hodges, 215 Mass. 112, 102 N.E. 432; Lawton v. National Surety Co., 248 Mass. 440, 445-446, 143 N.E. 333; Restatement: Conflict of Laws, ss. 519, 520. Compare Leach v. Leach, 238 Mass. 100, 103, 130 N.E. 262; Goodrich, Conflict of Laws (3d ed.) ss. 186, 190-192. However, if as executrix here she came into possession of identifiable trust property in specie and held it in Massachusetts this property would not become assets of Cyril's estate, but would be held by the executrix for the use of the true beneficiary. She can be required by a Massachusetts court of equity obtaining jurisdiction of her by service on her agent to deliver such property to the trust beneficiary if he proves his case and is not barred by laches or any statute of limitations. See Attorney General v. Brigham, 142 Mass. 248, 250-251, 7 N.E. 851; Meagher v. Kimball, 220 Mass. 32, 34, 107 N.E. 431. See also Stoneham Five Cents Savings Bank v. Johnson, 295 Mass. 390, 395, 3 N.E.2d 730, 106 A.L.R. 1333; New England Trust Co. v. Spaulding, 310 Mass. 424, 429-430, 38 N.E.2d 672; Compare Lowe v. Jones, 192 Mass. 94, 101-103, 78 N.E. 402, 6 L.R.A.,N.S., 487; Simmons v. Barns, 263 Mass. 472, 474-476, 161 N.E. 821; Compare also Koutoudakis v. Great American Indemnity Co., 285 Mass. 466, 468-469, 189 N.E. 621; Sullivan v. Sullivan, 323 Mass. 671, 84 N.E.2d 32. The Brigham case points out that, in the absence of ability to identify particular trust assets in specie, a claimant against a deceased trustee who has mingled trust assets with his own assets becomes merely a general creditor, subject as such to the statute of limitations applicable to executors. It is thus obviously of importance to determine whether as a matter of fact the defendant as Massachusetts executrix holds any identifiable trust assets.

The executrix's plea to the jurisdiction recites merely that there are no assets of Cyril's estate in Massachusetts and that one year (see the short statute of limitations found in G.L. (Ter.Ed.) c. 197, § 9 as amended) has passed since the date of her giving bond. These grounds will not bar a bill framed to recover identifiable trust property in specie held in Massachusetts by the ancillary personal representative of a decedent. The short statute of limitations, as is indicated by the Brigham case, 142 Mass. 248, 250-251, 7 N.E. 851, would not apply to a suit to recover such trust property, for it relates only to assets of the decedent, and specific trust property would not constitute such assets. Of course, if it should develop on a trial of the merits (if one is reached) that there were no specific trust assets held by the Massachusetts executrix as such, the short statute of limitations would be applicable to any claim of the plaintiff as a creditor.

The facts as to the existence of trust assets in specie in the hands of the Massachusetts executrix are not revealed by the evidence. Accordingly, in its present form the executrix's plea to the jurisdiction should have been overruled, even though there is enough in the record to suggest that it is unlikely that any original trust property is still held in specie by the Massachusetts executrix some twenty years after the creation of the alleged oral trust.

We have not overlooked the principle that, when one of two trustees dies, title to the trust property is in the survivor as trustee. Restatement: Trusts, s. 103. Scott, Trusts (2d ed.) ss. 103, 195. See Dixon v. Homer, 12 Cush. 41, 42; Oliver v. Poulos, 312 Mass. 188, 194, 44 N.E.2d 1, 142 A.L.R. 1094. Even if it be assumed that title to assets of the alleged trust was in the defendant as trustee after Cyril's death, the plaintiff conceivably might be able to prove (in support of his allegation that the defendant as Massachusetts executrix held such trust assets in specie here) that the defendant held such assets in specie in Massachusetts and claimed that they were part of Cyril's estate in Massachusetts.

(b) The plea to the jurisdiction filed by the defendant as an individual sets up that she 'has not been served personally within * * * Massachusetts and' that the 'court has no power * * * to enter any decree affecting her or her property.' She has not been served personally in Massachusetts and there is plainly no jurisdiction to enter any decree in personam against her. Rosenthal v. Maletz, 322 Mass. 586, 590, 78 N.E.2d 652, 1 A.L.R.2d 1022. However, the only type of relief (apart from a general prayer for relief) which the plaintiff asks for in the bill is in personam, that is, to...