Hull v. Adams

• Decision Date: 24 May 1934
• Citation: Hull v. Adams, 286 Mass. 329, 190 N.E. 510 (Mass. 1934)
• Parties: HULL v. ADAMS et al.
• Court: Supreme Judicial Court of Massachusetts Supreme Court

286 Mass. 329

190 N.E. 510

HULL

v.ADAMS et al.

Supreme Judicial Court of Massachusetts, Berkshire.

May 24, 1934.

Reservation and Report from Probate Court, Berkshire County; A. M. Robinson, Judge.

Petition by John B. Hull, executor, against Fred W. Adams and others for instructions as to the meaning of a will, in which case was submitted upon stipulation and agreed facts. On reservation and report.

Decree in accordance with opinion.

H. L. Harrington, of Adams, for respondent John B. Hull.

F. M. Myers, of Pittsfield, for respondent F. W. Adams.

J. H. Glavin, Jr., of Waterford, N. Y., for respondent May Steenberg.

W. E. Morris, for Waterford, N. Y., for respondent Amy Steenburg Wager et al.

RUGG, Chief Justice.

This is a petition by the executor of the will of Anna E. Adams for instructions as to the meaning of a paragraph in that will. It is stated in the report that all persons interested are of full age and have waived notice and that there are no persons not ascertained or not in being who are or may become interested in the estate. The case was submitted without testimony upon a stipulation and agreed facts, and without decision was reported for our determination. The will of the testatrix, after directing the payment of her debts and funeral expenses, contained these words: ‘I give and bequeath to my brother David D. Steenburg Ten Thousand Dollars, the use of same and as much of the principal as is necessary for his support, care and comfort. The balance of my estate to be divided in three parts as herein mentioned.’ Then follow the descriptions of the three persons who ‘are to share equally alike of the balance of my estate.’ An executor was named ‘without bonds.’ The will was dated in January, 1932. It contains no provision for the appointment of a trustee of the fund of $10,000. The size of the estate of the testatrix does not appear. There is no indication how much, if at all, it exceeded $10,000. The brother, David D. Steenburg, died in this commonwealth in August, 1932. He left an instrument purporting to be a will disposing of all of his property, which has not yet been allowed. A special administrator of his estate has been appointed, who is a party to these proceedings. After the allowance of the will of the testatrix, Michael L. Monahan was appointed a trustee of the fund given for the benefit of David D. Steenburg. He received that fund and a substantial part of it remains unexpended. The record does not state with positive assertion who now has possession of the balance of the legacy left for the benefit of David D. Steenburg.

No question has been raised as to parties, form or procedure. The case has been argued solely as to the answer which ought to be made to the request for instructions as to disposition of the unexpended balance of the legacy of $10,000 left at the death of David D. Steenburg. Nevertheless, notice ought to be taken of the extreme informality of the procedure. In some aspects it might affect the power of the court to decide the question sought to be raised.

It is assumed that the special administrator of the estate of David D. Steenburg has authority to represent his estate in this proceeding. Meagher v. Kimball, 220 Mass. 32, 107 N. E. 431;Purcell v. Purcell, 233 Mass. 62, 123 N. E. 394;Albert E. Touchet, Inc., v. Touchet, 264 Mass. 499, 509, 163 N. E. 184. G. L. (Ter. Ed.) c, 193, § 11.

There is difficulty about treating the petitioner as entitled to maintain the bill, because it does not appear that the trust fund as to the disposition of which instructions are sought has come to his hands. There is no allegation in the bill of that effect and no no allegation in the bill to that effect and no and agreed facts. The record does not show any fund held by the petitioner as executor as to the disposition of which questions have arisen. A trustee has no right to maintain a suit in equity for instructions concerning a trust fund which has not come into his possession. He must wait until he has a present duty to perform with respect to property in his hands before he can come into court for instructions respecting it. Proctor v. Heyer, 122 Mass. 525, 528;Hill v. Moors, 224 Mass. 163, 165, 112 N. E. 641;Putnam v. Collamore, 109 Mass. 509;In re Nickerson Appellant, 181 Mass. 571, 64 N. E. 408;Austin v. Bailey, 163 Mass. 270, 39 N. E. 1022.

The fair inference from the record is that Michael L. Monahan, hereafter called the trustee, has the fund as to which instructions are sought. Respecting him there are these statements in the stipulation and agreed facts:

‘Sixth. That after the allowance of the will of Anna E. Adams Michael L. Monahan of Williamstown was appointed trustee for the benefit of David D. Steenburg of the fund of Ten Thousand ($10,000) Dollars given in the will of Anna E. Adams, and as such trustee received said fund of Ten Thousand Dollars on or about March 1, 1932.

‘Seventh: ‘That at the time of the death of the said David D. Steenburg there was left remaining and unexpended of said fund of Ten Thousand Dollars paid over to the said Michael L. Monahan, trustee as aforesaid, approximately Seven Thousand ($7,000.00) Dollars.’

Since the fund is thus traced to his hands and there is nothing in the record to indicate any change in its custody, the presumption is that he continues to hold it. There is nothing to justify an inference that his trustee-ship has been terminated. Day v. Old Colony Trust Co., 232 Mass. 207, 210-211, 122 N. E. 189, 2 A. L. R. 1554. The one who rightly holds the fund in a trust capacity has a present duty to perform respecting it. He might rightly have petitioned for instructions what to do with it. He is not entitled to hold or dispose of it except in accordance with the will of the testatrix under which he was appointed trustee. He has signed, as one of the parties interested in the petition, the stipulation and agreed facts upon which the case has been reserved for the consideration of this court. He has joined in the request for instruction with which the stipulation and agreed facts conclude, namely, ‘To whom should the unexpended balance of’ the ten thousand dollar ‘fund remaining at the death of David D. Steenburg now be paid?’ It is not of controlling significance that he was not formally named as a party. He has become a party by signing the stipulation and agreed facts. Its concluding request puts him in the posture of a petitioner. He has thus submitted himself to the jurisdiction of the court. He will be bound by its decree and obliged to conform to its order. He has joined in a request for the affirmative instruction by the court as to the disposition of the fund. He has put himself in the position of an applicant for instructions so far as he may be entitled to seek instructions. It was said in Gahm v. Wallace, 206 Mass. 39, at 44-45, 91 N. E. 1002, 1004, by Chief Justice Knowlton speaking for the court: ‘It is a familiar rule that, if one appears generally in a case, or asks the court to do nything which involves the exercise of jurisdiction over the parties, he waives all questions in regard to service and submits himself to the jurisdiction of the court.’ Other authorities are to the same effect: Paige v. Sinclair, 237 Mass. 482, 484-485, 130 N. E. 177;Crull v. Kenner, 18 Ill. 65, 66;Edinger v. Heiser, 62 Mich. 598, 612, 29 N. W. 367;Fulton v. Ramsey, 67 W. Va. 321, 326-327, 68 S. E. 381,140 Am. St. Rep. 969; Moyer v. McCullough, Smith (Ind.) 211, 213.

The case has been argued at large by the parties in interest without objection. All the parties and facts necessary for determining the question in dispute appear to be before us. Therefore, notwithstanding the almost fatal informality with which the case is here, the question in dispute will be determined. G. L. (Ter. Ed.) c. 231, §§ 124, 144; Adams v. Silverman, 280 Mass. 23, 30, 182 N. E. 1;Fratta v. Rossetti, 277 Mass. 98, 177 N. E. 890. The parties by...