Lawrence v. Sec. Co

• Decision Date: 31 March 1888
• Citation: 56 Conn. 423,15 A. 406
• Parties: LAWRENCE v. SECURITY CO.
• Court: Connecticut Supreme Court

15 A. 406

56 Conn. 423

LAWRENCE

v. SECURITY CO.

Supreme Court of Errors of Connecticut.

March Term, 1888.

Scire facias by James J. Lawrence against the Security Company, to subject defendant to liability for certain sums of money belonging to Sarah S. Cowen, for whom defendant was trustee, some of which were alleged to have been wrongfully paid out, and others of which it was alleged defendant wrongfully neglected to collect. Judgment for defendant, and plaintiff appeals.

G. G. Sill, for appellant. Chamberlain, White & Mills, for respondent.

PARDEE, J. Frederick Tyler died on August 3, 1880. By his will he devised two-fifths of the residue of his estate, after payment of debts and specific legacies, in trust for the life-use of his daughter, Mrs. Sarah S. Cowen, the remainder over. The trustees named by him declined the trust. On December 4, 1880, the defendant, the Security Company, became, and still continues to be, the duly appointed trustee. On October 29, 1881, the executors exhibited an account to the probate court. It was accepted, and distributors were appointed. On January 23, 1882, the executors exhibited their final account, and it was accepted. On February 2, 1882, the distributors made return of distribution, which was accepted. They distributed to the defendant, as trustees for Mrs. Cowen, real and personal estate of the value of nearly $40,000. On June 15, 1881, the executors paid to the defendant, as such trustee, the sum of $15,000, and on August 20, 1881, the additional sum of $10,000. Between these respective dates and the 1st day of November, 1881, these sums earned in the hands of the defendant the sum of $431.34 as interest; and it subsequently delivered this last-named sum to the executors, as being the property of the estate, on the ground that Mrs. Cowen was not entitled to any interest earned prior to distribution. On the 24th day of May, 1884, the plaintiff, as surviving partner of the firm of Brewster & Co., instituted a civil action against Mrs. Cowen in the superior court for Hartford county, demanding $3,000 damages; and on the 29th day of that month caused due service of garnishment to be made upon the defendant as her agent, trustee, and debtor. On March 15, 1887, he recovered judgment against her for $2,135.76 damages, and $75.17 costs; and on the same day instituted an action on the judgment against her, making due service of process of garnishment thereon upon the defendant as her agent, trustee, and debtor. The defendant then disclosed to the officer serving the process that it was not then indebted to her. The officer not being able to find any property belonging to her, the plaintiff on the same day filed his petition in the probate court, alleging the proceedings in this last-mentioned suit, and asking for the appointment of a trustee to take possession of her estate for the benefit of her creditors. The suit was pending in the superior court at and abated by her death, on June 24, 1887. At the time of commencement of this second suit he had no reason for believing the disclosures of the defendant to be untrue, and did believe them to be true, and relied upon them; and his chief object in instituting the second suit was to make it the basis for proceedings in insolvency; and he did not until some time in April, 1887, know that no part of the income accruing from the estate between the date of the testator's death, in August, 1880, and the 1st day of November, 1881, had been paid to Mrs. Cowen, or that any part of such income had been included in the amount distributed and paid over to the defendant as trustee. The probate court allowed to Mrs. Cowen, and she accepted, the sum of $1,500 for her support during the settlement of the estate, as the family of the testator. On February 2, 1882, the distributors made their return of distribution, which was accepted by the probate court. After deducting specific legacies, family allowances, debts, and all other charges, the residue left for distribution amounted to $99,425.59; which amount included the estate inventoried, increase in value of stocks, proceeds of sales, and all interest, rents, and dividends, amounting to $5,110.21, accruing from the death of the testator to November, 1881, and in payment of debts and charges; and in the distribution no distinction was made between principal and income. The defendant, as such trustee, received two-fifths of the residue so made up, and treated the whole as the principal of the trust fund. The executors did not pay to Mrs. Cowen any part of the interest, rents, or dividends accruing before November 1, 1881, unless the allowance of $1,500 to her, as the family of the testator, can legally be so considered. Neither Mrs. Cowen, nor the defendant, nor any person in her behalf, objects to the distribution, or appeals from the decree of the probate court accepting it. In February, 1880, and on each subsequent January to the present year, the defendant, as such trustee, has exhibited an annual account to the probate court, of receipts, payments, and expenses as trustee, and an inventory of the trust fund; making oath that the accounts were correct. The probate court indorsed thereon, "Exhibited, sworn to, and accepted," with the date, and recorded the same, together with such indorsements, with this exception: that the part of the account giving items was not recorded, but filed merely. Mrs. Cowen was not present at such exhibition of accounts. She had neither notice nor knowledge thereof, and she took no appeal from the decree of the court accepting them. Upon her death intestate, her estate was represented as insolvent, and commissioners were appointed to receive and determine upon claims presented against it. Subsequently to the bringing of this suit the plaintiff presented his judgment to them as a claim, omitting to state that he had any security therefor, and the commissioners allowed the same in full, as a claim wholly unsecured.

Upon the foregoing facts the plaintiff claimed (1) that, by the will of Frederick Tyler, Mrs. Cowen was entitled to rent and income accruing after the date of the testator's death, (instead of after November 1, 1881,) from the estate given by the fourth clause of the will, in trust for her benefit; (2) that, if she were not entitled to such rent and income from the date of the death of said Tyler, she was entitled to rent and income accruing after August 3, 1881; (3) that she was entitled to the interest, amounting to $431.34, accruing from June 15, 1881, and August 20, 1881, to November 1, 1881, on the $15,000 and $10,000, paid to the trustee by the executors, which interest was paid by the trustee to the executors instead of to Mrs. Cowen; (4) that the defendant had never in fact been released or discharged by Mrs. Cowen from its liability to her for any of said rent or income accruing prior to November 1, 1881, and that the matters alleged in the answer, and found true by the court, did not amount to a discharge of such liability by operation of law; (5) that on May 29, 1884, when the defendant was garnished, it had in its hands, of such rent and income as had accrued between Mr. Tyler's death and November 1, 1881, a large sum, to-wit, about the sum of $2,000, (namely, two-fifths of $5,110.21,) and that the defendant was liable to Mrs. Cowen and indebted to her, on said May 29th, for two-thirds thereof,—the other one-third being due to her daughter Sophia T.; (6) that the defendant was then liable to Mrs. Cowen for such amount of rent and income, as having moneys belonging to her in its hands which it had received from the executors of Mr. Tyler; (7) that it was then liable to her for such amount, as having in its hands that amount of accrued rents and income belonging to her, which it was its duty as trustee to pay over; (8) that it was then liable to her to...