Hampton v. Foster

• Decision Date: 06 January 1904
• Docket Number: 1,169.
• Citation: 127 F. 468
• Parties: HAMPTON v. FOSTER.
• Court: U.S. District Court — District of Massachusetts

127 F. 468

HAMPTON v. FOSTER.

No. 1,169.

United States Circuit Court, D. Massachusetts.

January 6, 1904

Benj. G. Hall, for plaintiff.

Bartlett & Anderson specially for George M. Foster, trustee.

John J Cahill, for town of Peabody.

BROWN District Judge.

This action at law is brought by the plaintiff, as receiver of the South Danvers National Bank, to recover an assessment levied by the Comptroller of the Currency. Jury trial is waived, and the case is submitted upon two written statements of fact respectively entitled 'Agreed Statement of Facts' and 'Amended and Additional Statement of Facts.'

I find the facts to be as set forth in both statements, except that so far as the later amended and additional statement is inconsistent with the earlier statement, I find the facts to be as set forth in the later. Many facts set forth are, in my opinion, immaterial to the present case. The defendant is described in the writ and declaration 'as trustee.' The plaintiff contends that under section 5152 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 3465) a trust fund known as the 'Wallis School Fund' is directly liable for an assessment upon 38 shares of the stock of the South Danvers National Bank, and that the defendant Foster individually is not liable to judgment. The description of the defendant 'as trustee' must however, in this action at law, be regarded as surplusage. In Odd Fellows Hall Association v. McAllister, 153 Mass. 292, 297, 26 N.E. 863, 11 L.R.A. 172, it was said:

'The description of the defendant as trustee in the writ was surplusage. There is no provision by which judgments and executions against trustees run against the trust estate in their hands, as in the case of executors and administrators. Even where they are entitled to indemnity from the trust fund, the judgment in an action at law is against them as individuals, whatever may be the doctrine of equity.'

See, also, Shepard v. Creamer, 160 Mass. 496, 36 N.E. 475.

The question whether the 38 shares in question were in fact held by the defendant Foster, as trustee, in such manner as to render liable the trust funds, has been argued at length. The trust fund known as the 'Wallis School Fund' owes its origin to the following provision of the will of Dennison Wallis, of Danvers, Mass., probated in October, 1825:

'Having the prosperity, of the present and succeeding generation-- in view, I hereby order and direct my executors, or the survivor of them, to appropriate and expend, for and towards the support of a school or schools for the benefit of the whole District Number One in which I now live, all the income of the following property (after deducting a reasonable sum for their or his attending to same,) to wit, twenty-seven shares in the Beverly Bank at Beverly; ten and one half shares in the Marblehead Bank at Marblehead, and fifteen shares in the Union & Marine Insurance office at Salem; and in case either of said companies shall cease to continue; then my executors or the survivor of them, shall put the principal on interest to the best advantage, and the income of the whole (except as above) shall be forever appropriated to the above purpose; the income to be reckoned from the day of my decease.'

The defendant Foster was appointed trustee April 17, 1899, and as such trustee came into possession of 38 shares of the South Danvers National Bank stock. These shares had been purchased by trustees who had preceded foster 'at times when said bank was solvent, and when said stock sold at a premium on the market, and at dates more than twenty years previous to the failure of said bank (South Danvers National Bank). * * * Said 38 shares are no part of the reinvestment of the original funds, but were purchased with the accumulated dividends and profits which came into the hands of said former trustees from the original fund, except perhaps 11 shares purchased by a former trustee, Henry Cook, which may or may not have been a reinvestment of part of the original funds. ' According to the final...