Hodge v. Mackintosh

• Citation: 143 N.E. 43,248 Mass. 181
• Parties: HODGE v. MACKINTOSH.
• Decision Date: 03 March 1924
• Court: United States State Supreme Judicial Court of Massachusetts

248 Mass. 181

143 N.E. 43

HODGE

v.MACKINTOSH.

Supreme Judicial Court of Massachusetts, Norfolk.

March 3, 1924.

Appeal from Probate Court, Norfolk County; J. R. McCoole, Judge.

Bill by Carrie A. Hodge against Herbert B. Mackintosh, wherein the latter filed a cross-bill. From decrees, the defendant appeals. Affirmed.

See, also, Petition of Mackintosh, 246 Mass. 482, 141 N. E. 496.

H. B. Mackintosh, of Needham, for appellant.

W. G. Moseley, of Boston, for appellee.

PIERCE, J.

November 23, 1921 Herbert B. Mackintosh, the appellant in this case presented to the Norfolk county probate court his first account for allowance, as trustee under the will of John M. Hodge, who died February 21, 1910, at Needham, in the county of Norfolk, for the benefit of Carrie A. Hodge. The appellant was appointed trustee March 27, 1919, and the account is for the period beginning March 27, 1919, and ending November 23, 1921. After a citation to all persons interested and an appearance for the beneficiary, the judge of probate, under the authority of G. L. c. 221, § 57, appointed an auditor to ‘examine vouchers and evidence, and report upon the same to the court.’

The auditor heard the parties and their evidence and reported in substance that Mackintosh was appointed trustee under the will of Hodge, which was allowed March 16, 1910, to fill the vacancy caused by the death of Carrie I. B. Moran, who was appointed trustee under the will, was qualified on May 1, 1912, and died on March 27, 1919. The auditor in his report set out in extenso the second clause of the will, which, in substance, gave to his daughter, Carrie I. B. Moran, all his property in trust to pay the net income semiannually to his wife for life, with full power in the discretion of the trustee to use principal as well as income for the comfort and support of his wife, the remainder over to go to the daughter free of trust, if she should survive her mother, and if she should predecease her mother, then to his wife discharged of all trust. Powers to change investments were given in comprehensive terms to his trustee and to ‘any successor to her duly appointed by the court.’ The auditor reports that the daughter died before the wife and that Mackintosh, as trustee, received, according to the inventory filed by the trustee plus $37.50 omitted from the inventory, $5,937.50. He further finds that the inventory consisted of three items of personal estate, appraised as follows:

+----------------------------------------------+
                ¦Mortgage note of James Hutchison       ¦$ 800 ¦
                +---------------------------------------+------¦
                ¦Mortgage note of James H. Whetton et al¦4,200 ¦
                +---------------------------------------+------¦
                ¦Deposit in Home Savings Bank, Boston   ¦900   ¦
                +---------------------------------------+------¦
                ¦                                       ¦$5,900¦
                +----------------------------------------------+
                

He found that ‘it is agreed by both the petitioner and counsel for the respondent that the trust created by the said second clause of the will of John M. Hodge terminated with the death of Carrie I. B. Moran’; that it was the duty of the trustee on his appointment to transfer to the wife of the testator the trust estate, then consisting of two mortgage notes and the bank deposit, and terminate the trust of record; that the wife, a woman now eighty years of age, desired this to be done and at different times urged the petitioner to turn the property over to her, but that no part of the principal, with the exception of $100, has been paid to her. He finds that Mackintosh collected the Whetton mortgage note for $4,200, constituting more than two-thirds of the entire estate, and invested this money, with the exception of a small sum which was deposited in a savings bank, in bonds which were his own personal property and were transferred by the petitioner through a third party from himself to the trust estate; that the trustee should account for the original property ($5,937.50) plus income during the period of accounting ($932.70), $6,870.20; less the $100 payment of principal, $662.47 payments of income, appraisers' fees $15, trustee's miscellaneous expense $10, and a lump sum of $100 for trustee's services (a total deduction of $887.47), leaving the balance due $5,982.73. The allowance of $110 for services and expenses was to compensate, not for the things actually done, but for ‘services he was appointed to perform.’ The trustees thereupon filed certain objections to the report; and later twenty exceptions, eighteen of which rested upon and followed in terms the objections; he also filed a motion to recommit the auditor's report ‘because the auditor did not in accordance with equity rule xxxi of Supreme Court rules and equity rule xxii of the probate court rules furnish the parties or their attorneys, with a copy of his draft report.’ The motion to recommit was disallowed July 5, 1922, and an appeal therefrom was duly filed, as was also a bill of exceptions, which bill was disallowed by the judge of probate and dismissed in this court on petition to establish them. Mackintosh, Petitioner, 246 Mass. 482, 141 N. E. 496.

January 13, 1923 the respondent, Carrie A. Hodge, filed a bill in the probate court setting forth the facts found in the auditor's report and praying that the objections to the auditor's report be overruled; that the motion to recommit to the auditor be denied and dismissed; that the claim of appeal be dismissed as it was not seasonably filed; that the report of the auditor be approved; that a decree be made that the trust terminated with the death of Carrie I. B. Moran; that the amount of income received since the findings of the auditor be added to the amount by him found to be due; that the auditor's report be confirmed; and that the amount found due be ordered paid. The trustee answered, in substance, on the lines set down by him as a reason why the report should be recommitted, and also answered that the beneficiary engaged him before and at the time of his appointment to manage the estate for her and to pay her the income for a considerable period of time; that his acts had been in accordance with that understanding; that he made an agreement with the authorized attorney of Mrs. Hodge to settle all litigation by the payment and transfer of cash or securities amounting to $3,750, as is particularly set forth in a ‘cross-bill filed in answer hereto.’

A hearing on all these matters was had in the probate court, with a commissioner appointed to take the evidence. The judge made findings of the material facts and ordered and decreed, in substance, that the objections to the report of the auditor be overruled and denied; that the motion that the report be recommitted for further hearing is dismissed; that the claim of appeal is dismissed, the same not having been seasonably perfected; that the report of the auditor is approved; that the trust established under the will of John M. Hodge terminated on the death of Carrie I. B. Moran as is provided in the second paragraph of said will; and that said Herbert B. Mackintosh, trustee...