In re Hodges' Estate

• Decision Date: 09 January 1893
• Citation: 28 A. 663,66 Vt. 70
• Parties: In re HODGES' ESTATE.
• Court: Vermont Supreme Court

28 A. 663

66 Vt. 70

In re HODGES' ESTATE.

Supreme Court of Vermont General Term.

Jan. 9, 1893.

Exceptions from Windsor county court; Tyler, Judge.

In the matter of the estate of Edmund Hodges, deceased. Appeal by the estate of Polly Hodges from a decree of the probate court settling the account of Smith Hodges, trustee. There was judgment that nothing was due appellant, and appellant excepts. Reversed.

For former report, see 22 Atl. 725, 63 Vt. 661.

This was an appeal from a decree of the probate court settling the account of Smith Hodges, trustee. Heard at the December term, 1892, Windsor county, upon the report of a commissioner, and exceptions thereto, Tyler, J., presiding. Judgment that the report be accepted, and that nothing is due from the said Smith Hodges, trustee. The estate of Polly Hodges, appellant, excepts. Edmund Hodges died February 22, 1864, leaving a will, of which Smith Hodges was appointed executor by the probate court. March 11, 1867, said executor settled his account in the probate court, and there was found upon such settlement $3,610.65 remaining in his hands. Thereupon he was ordered by decree of said probate court to account to Polly Hodges, widow of the deceased, for the use and income of said $3,610.65 during her lifetime, agreeably to the provisions of the will of the testator. The accounting before this commissioner was between the estate of Polly Hodges and the said Smith Hodges, executor and trustee, it being claimed upon the part of the said Polly Hodges' estate that the said Smith Hodges had not in her lifetime paid over to her the income of said trust fund. Polly Hodges died May 20, 1888, and it appeared that during the greater part of the time between the settlement of his account in the probate court, in 1867, and the date of her death, Smith Hodges had mingled the trust funds with his own estate, and had kept no separate accounts in reference to the same. His claim was that, in supporting Polly Hodges, who was his mother, he had paid over to her a sum in excess of what the income of the fund in his hands would reasonably be. He also claimed several deductions by reason of losses of income, all of which were disallowed by the commissioner, except one. On June 2, 1877, Smith Hodges loaned one Ford $1,000 of money belonging to the trust fund, and $483 of his own money, and took Ford's note, payable to himself personally, for the whole sum, $1,483, and a mortgage of real estate situated in the village of Woodstock to secure said note. At the time Hodges took this mortgage he made reasonable inquiry as to the value of the property mortgaged, and came to the conclusion that it was worth $2,200, and was good security for the sum loaned. Soon after the execution of this mortgage, Ford became insolvent, and Hodges was ultimately obliged to take a deed of the property in payment of the note. This was in 1882, and he held title to the property from then until March, 1884, when he sold it for $1,200. Taking into account the amount which he had expended in connection with the property, and the amount which he had received from the property, there was a net loss of principal, besides a loss of interest from June 2, 1877, to the date of the sale, March 27, 1884, which the commissioner held should be deducted from the income of the trust fund. The commissioner found that Hodges acted with reasonable prudence in negotiating the loan and in caring for and disposing of the property, and that the loss was occasioned mainly or wholly by the depreciation of the value of the mortgaged property, and by the insolvency of the mortgagor.

Norman Paul, for plaintiff.

W. E. Johnson and French & Southgate, for defendant.

THOMPSON, J. It was held in this case, reported in 63 Vt 661, 22 Atl. 725, that, after the ascertainment of the amount of the residuum of the estate of Edmund Hodges, and the decree of the probate court leaving it in the bands of Smith Hodges, the executor, to be applied to the use of the widow, Polly Hodges, in accordance with the provisions of the will, the executor was under the obligations of a trustee as completely as if so named in the will and appointed by the court. On this basis he is to account for the income of the trust fund, to which the widow...