Goff v. MacDonald

• Decision Date: 29 September 1955
• Citation: 129 N.E.2d 115,333 Mass. 146
• Parties: Luke L. GOFF, trustee and Individually, v. Margaret MacDONALD and others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 115

129 N.E.2d 115

333 Mass. 146

Luke L. GOFF, trustee and Individually, v. Margaret MacDONALD and others.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Nov. 1, 3, 1954.

Decided Sept. 29, 1955.

J. Haller Ramsey, Boston, for plaintiffs, Luke L. Goff and another.

Daniel Santry, Lynn, for defendant Frank J. Gough.

Ralph F. Albert, Everett, for defendant Margaret MacDonald.

Before QUA, C. J., and RONAN, WILKINS, SPALDING and WILLIAMS, JJ.

RONAN, Justice.

This is an appeal from a final decree in a suit brought by Luke L. Goff (hereinafter called the plaintiff), as trustee of the estate of Martin G. Gough and as an individual, against Margaret MacDonald, Frank J. Gough, and James H. Gough for an accounting to the trust estate and for damages alleged to have been sustained by him individually by reason of certain conduct on their part described in the bill.

This is another step in the protracted litigation arising out of the settlement of this estae. Besides various proceedings in the Probate Court for Middlesex County and in the Probate Court for Essex County and an action at law in the Superior Court in Essex County, none of which reached this court, settlement of this estate has already been before this court on four previous occasions. See MacDonald v. Gough, 326 Mass. 93, 93 N.E.2d 260; Id., 327 Mass. 739, 101 N.E.2d 124; MacDonald v. Goff, 329 Mass. 220, 107 N.E.2d 198; Gough v. Gough, 329 Mass. 634, 109 N.E.2d 913. A brief summary of this litigation will be useful in understanding the background of the present suit. The intestate died on July 27, 1948, leaving as his heirs three brothers, Luke, James, and Frank. He had lived with Margaret MacDonald as husband and wife for many years before his death, and the question arose whether there was any marital relation. He had made investments for her and it was uncertain what claims she might have against his estate and the extent of those claims. On August 16, 1948, Frank and James gave Luke a power of attorney to adjust the claims of MacDonald, and on August 18, 1948, Luke and Frank executed an agreement of compromise with her whereby Luke was to administer the estate; the brothers were to turn over all the net assets of the estate to Luke as trustee to pay her $195 a month during her life and at her death to distribute the balance equally among the three brothers or their heirs; and she was to waive all her claims against the estate except for certain shares of stock. Luke agreed to act as administrator and trustee. On the last-mentioned date Luke and Frank executed an indenture of trust to enable the terms of the compromise to be performed. James refused to sign either the compromise agreement or the indenture and both of these instruments were executed by Luke in the name of James under the power of attorney which James had given him.

On November 22, 1948, MacDonald joined with Luke and Frank in filing a bill against James to compel specific performance by James of the compromise agreement and the indenture of trust which he had refused to sign. After the rescript which came down on June 6, 1950, MacDonald v. Gough, 326 Mass. 93, 93 N.E.2d 260, the bill was amended to include Mr. Malinow, who had been appointed administrator on March 25, 1949, and a second rescript went down in that case on October 1, 1951, ordering the administrator upon the settling of the estate to distribute the net estate to Luke as trustee for the benefit of those named in the indenture of August 18, 1948. MacDonald v. Gough, 327 Mass. 739, 101 N.E.2d 124. James as a result of this litigation was enjoined from proceeding with a petition he had filed in the Essex Probate Court for appointment as an administrator. MacDonald had brought an action at law to recover for services rendered and money lent to the intestate. She had also brought a petition for distribution in the Essex Probate Court. The action at law was discontinued shortly after the decision in MacDonald v. Gough, 327 Mass. 739, 101 N.E.2d 124 and the petition for distribution was dismissed. Mr. Malinow, who had been appointed receiver on September 20, 1949, to collect the rents and who had been appointed administrator on March 25, 1949, filed his accounts in the Probate Court for Essex County after the decision in 327 Mass. 739, 101 N.E.2d 124 and turned over the assets in his hands to Luke as trustee.

On June 21, 1950, MacDonald brought a bill against the heirs and the administrator to establish her rights in certain real estate and personal property. This controversy narrowed down to the ownership of two bank accounts. Luke and Mr. Malinow, the administrator, appealed from a final decree in the Superior Court adjudging that one account belonged to Luke and the other to MacDonald. We reversed that decree, holding that the second bank deposit belonged to the administrator for the reason that by the compromise agreement of August 18, 1948, MacDonald had waived all her rights and claims in the estate. See MacDonald v. Goff, 329 Mass. 220, 107 N.E.2d 198.

Frank, who had occupied a cottage belonging to the estate, brought on February 6, 1952, a petition against his two brothers and Mr. Malinow as receiver for contribution for certain expenses he had incurred, such as taxes and water bills, on the ground that the property was held by the three brothers as tenants in common. This court decided that Luke as trustee became the owner of this real estate upon the execution and the delivery of the instrument of trust on August 18, 1948, and affirmed a dismissal of the petition by its rescript of January 6, 1953. Gough v. Gough, 329 Mass. 634, 109 N.E.2d 913.

With the history of this prolonged litigation we come now to the instant suit.

The plaintiff contends that there was error in the ruling that he was not entitled to recover individually or as trustee for the damages incurred by him or the trust estate on account of the suits and actions brought by the defendants. The defendants were permitted to amend their answers by setting up res judicata as a defence respecting the different proceedings we have already mentioned which the plaintiff alleged caused expense to him and to the trust property. It is plain, however, that the defendants were using the term not in the sense that the plaintiff was bound by the judgments rendered in the previous cases but in the sense that, costs having been awarded to the prevailing parties, they were bound by the general rule that taxable costs are in contemplation of law full indemnity for counsel fees and disbursements incurred by the successful party in prosecuting an action at law or a suit in equity. The judge by his remarks indicated that he understood that the issue was whether the plaintiff was entitled to damages in addition to whatever costs had been awarded in the previous proceedings. Ballou v. Farnum, 11 Allen 73, 77. Faneuil Hall Ins. Co. v. Liverpool & London & Globe Ins. Co., 153 Mass. 63, 72, 73, 26 N.E. 244, 10 L.R.A. 423. Newton Rubber Works v. De Las Casas, 182 Mass. 436, 65 N.E. 816. Rowland v. Maddock, 183 Mass. 360, 67 N.E. 347. McIntire v. Mower, 204 Mass. 233, 90 N.E. 567. Dahlstrom Metallic Door Co. v. Evatt Construction Co., 256 Mass. 404, 417-418, 152 N.E. 715. Luke had been successful in all this previous litigation. There was nothing decided therein which was adverse to him and he cannot complain if he has been deprived of collecting in this suit damages in addition to taxable costs, if any, theretofore awarded to him. Luke, as trustee, for the first time has now become a litigant in matters involved in the administration of the trust. While judgments in suits in which he acted individually would not bind him when acting as trustee, forbes v. Douglass, 175 Mass. 191 55 N.E. 847; McCarthy v. William H. Wood Lumber Co., 219 Mass. 566, 107 N.E. 439; Moore v. Mansfield, 248 Mass. 210, 142 N.E. 792; Freeman on Jundgments, s. 418; Restatement: Judgments, s. 80, he is not entitled to recover for alleged injuries to the trust fund on account of any prior litigation none of which was shown to constitute a legal wrong, Wiggin v. National Fire Ins. Co., 271 Mass. 34, 37, 170 N.E. 795, except the proceeding brought by James to have himself appointed administrator. The judge found that there was no evidence of any actual damages sustained by reason of this conduct of James. He found that James had committed a breach of contract and awarded nominal damages in the sum of $1 against him. The abbreviated record does not show that the judge was plainly wrong. The bringing of the various other proceedings by MacDonald, notably a petition for distribution and an action at law for services rendered and money lent to the intestate, and the petition of Frank for contribution of the expenses incurred by him in respect to the maintenance of the cottage in which he lived, were not tortious acts. It was not alleged that these...