Indian Head Nat. Bank v. Theriault

• Decision Date: 01 November 1949
• Citation: 96 N.H. 23,69 A.2d 226
• Parties: INDIAN HEAD NAT. BANK, trustee, v. THERIAULT et al.
• Court: New Hampshire Supreme Court

Page 226

69 A.2d 226

96 N.H. 23

INDIAN HEAD NAT. BANK, trustee, v. THERIAULT et al.

Supreme Court of New Hampshire.

Nov. 1, 1949.

Robert E. Earley and Charles J. Flynn, Nashua (Mr. Flynn orally), for the appellant Geo. F. Theriault.

John D. Wilcox and Paul J. Doyle, Nashua (by brief), for the appellant Luella A. Theriault, Guardian.

Guertin & Leahy, Nashua (A. A. Guertin, Nashua, orally), for the appellee.

DUNCAN, Justice.

Since the interests of the appellants are not identical, their rights upon appeal must receive separate consideration. As applied to the appeal of George Theriault, the orders of the Superior Court were without error. The appeal raised no issue of fraud. By the motion to amend filed on November 16, 1948, the appellants sought to charge the trustee with fraudulent collusion with its predecessor trustee and the executor of the will, both in the capacities mentioned and as guardians of the then minor sons of the testator. So far as appears, the transactions alleged to have been fraudulent occurred prior to the resignation of the predecessor trustee in August 1931. In the course of the hearing which preceded the filing of the motion, it appeared that the appellants also sought to charge the trustee with neglect in failing to take action to recover the difference between the value of the assets which it received from its predecessor and the balance as shown by his final account, and with neglect in failing to charge the predecessor trustee with mismanagement or maladministration disclosed by his accounts.

In Spooner v. Dunlap, 87 N.H. 384, 387, 180 A. 256, 258, this Court said: 'Except under extraordinary circumstances, no duty would * * * devolve upon the present trustee to investigate the conduct of his predecessor.' The pretrial hearing diclosed no extraordinary circumstances which should have required any investigation by the appellee of the conduct of its predecessor, whose accounts had been allowed by the probate court. If in fact there had been the fraudulent collusion in which the appellee is alleged to have participated, its failure to investigate conduct in which it participated would not add to its liability for such participation, or for any breach resulting therefrom. The appellants are correct in their contention that the appellee, as a successor trustee, was under a duty to collect the trust assets as disclosed by the accounts of its predecessor, although this was subject to any right on his part to correction of the accounts in case of mistaken failure to claim allowable depreciation in value. Duncan v. Dow, 95 N.H. 5, 57 A.2d 417. The order restricting the issues to be tried to those arising out of the latest account of the trustee precluded the appellants from litigating any liability for failure to collect the assets, and from seeking to establish liability for the alleged fraud. This order is sustained.

The appellant George Theriault has been of age during the entire period in which accounts of the appellee trustee have been allowed. His brother Albert became of age in 1932, prior to allowance of the trustee's second account. Eight accounts were allowed without objection and no objection was made to any conduct of the trustee until 1941. The issue of fraud was not raised until 1948, long after the death of Albert. If the fact that the predecessor trustee was also guardian of one or both of the beneficiaries during their minority explained their failure to object to his accounts, it did not explain their failure to act that they became of age. The issue of laches was heard by the Court, and the explanation offered by appellants' counsel was not such as to compel a finding of diligence.

R.L. c. 365, sections 1 and 2 provide that appeals from decrees of the probate court shall be taken within sixty days. Under subsequent sections, if 'the petitioner has not unreasonably neglected to appeal, and * * * injustice has been done' (§ 9), he may be allowed an appeal 'at any time within two years thereafter.' (§ 7). R.L. c. 390, § 9 provides that 'amendments in matters of substance may be permitted * * * when it shall appear to the court that it is necessary for the prevention of injustice * * *.' 'The statute of appeal and the statute of amendment are to be correlated. Limitations of time have in view the expeditious settlement of estates and of probate litigation. In construction of the statutes, there can be no injustice in holding a party to a requirement from which he shows no good reason for relief.' Broderick v. Smith, 92 N.H. 33, 37, 23 A.2d 774, 777.

The appellant George Theriault has not sustained his burden of showing that his failure until 1941 or 1948 to question the conduct of the trustees between 1928 and 1932 was not negligent. Wellington v. Wellington, 88 N.H. 482, 192 A. 153; Knight v. Hollings, 73 N.H. 495, 63 A. 38. See also, Scott, Trusts, c. 219; Cote v. Cote, 94 N.H. 372, 54 A.2d 360; In re Schlicht's Estate, 231 Wis. 324, 285 N.W. 730. While the authority of the probate court to reopen its decrees is undoubted, it will not be exercised except for...