McDonald v. Hartford Trust Co.

• Decision Date: 23 February 1926
• Citation: 132 A. 902,104 Conn. 169
• Court: Connecticut Supreme Court
• Parties: MCDONALD v. HARTFORD TRUST CO.

132 A. 902

104 Conn. 169

MCDONALD v. HARTFORD TRUST CO.

Supreme Court of Errors of Connecticut.

February 23, 1926

Appeal from Superior Court, Hartford County; William M. Maltbie Judge.

Action by Louise D. McDonald against the Hartford Trust Company administrator, to recover damages, for a decree that certain property described in the complaint was held by the defendant's intestate as trustee for the plaintiff and received by the defendant subject to this trust, and for a decree for an accounting by defendant for all the personal property which defendant's intestate held as trustee for the plaintiff, and which came into the hands of defendant. Judgment for defendant, and plaintiff appeals. Error, and judgment set aside, with directions to render judgment for plaintiff to recover $5,100, with interest from April 19 1890.

Lapse of time is no bar to action by principal against fiduciary for accounting so long as relationship exists.

John J. Dwyer, of New York City, for appellant.

John F. Forward, of Hartford, for appellee.

Argued before WHEELER, C.J., and CURTIS, KEELER, HAINES, and JENNINGS, JJ.

WHEELER, C.J.

We give in the first instance an outline of the case sufficient for an understanding of the discussion to follow; in the treatment of one or two of the points involved it will be necessary to give a more detailed statement of the immediate facts essential to the consideration of these points, and this we shall do in connection with their consideration.

The defendant's decedent, McDonald, who was the plaintiff's husband, and the plaintiff were married in Louisville, Ky. on November 14, 1888, and lived together until his death on October 21, 1912. On April 19, 1890, the plaintiff received from her mother's estate a one-half interest in two mortgages which were assigned to her sister and self. One of the mortgages was paid by the medium of a check for her one-half, made payable to her and indorsed to her husband, and used in large part to pay plaintiff's sister for her one-half interest in the other mortgage, which was transferred to plaintiff. Subsequently this mortgage was satisfied by a check made payable to the plaintiff, or to the plaintiff and her sister, and indorsed to McDonald. The amount received by the plaintiff from her interest in her mother's estate cannot be exactly ascertained, but was between $5,000 and $5,220.55. The steps taken to secure to plaintiff and reduce to cash her share from her mother's estate were taken without action or suggestion from McDonald, but with his consent and approval. When these checks were turned over to McDonald by plaintiff, she asked him to invest these amounts as he thought best, and he promised to do so. He deposited the checks in his own bank account, and invested and reinvested the proceeds at his pleasure and in his own name; thereafter he deposited the increment therefrom together with all funds received by him from any source in his own bank account, and drew against it for all his expenditures, whether on account of investments, household, personal, or other charges. At the time of his marriage to plaintiff, McDonald received a salary of $1,200 a year, which was soon increased to $1,500 and so continued to his death, with the exception of two years when he received $1,700 a year. He lived frugally. He had acquired some property before his marriage, and he made a substantial saving out of his salary. For the last six years of his life he speculated on margin, his transactions exceeding a half million dollars. At his decease he was in possession of eleven different securities valued at nearly $33,000. Upon the former trial it appeared that the administrator, his final account having been accepted by the probate court, had in his hands for distribution upwards of $29,000. The only outstanding and unpaid claim is that of the plaintiff. Neither McDonald nor the defendant has ever returned to the plaintiff any part of the funds so received from her, or the proceeds of properties purchased with them and resold, or made an accounting therefor. Plaintiff has made two demands upon defendant for these securities in its hands or cash in lieu thereof, which defendant refused. In the first count the plaintiff alleges that these eleven securities were purchased by her husband with this money received from her, or from the income thereof, or the proceeds of sales of other securities purchased with her funds, under the promise to invest and reinvest the proceeds thereof as his judgment might approve, and were accepted upon these conditions. In the second count she further alleges that the decedent has dealt with the funds so received by her from her mother's estate as his own, and refused to render an account of the funds or property so received, or any part thereof.

The plaintiff claims: (1) Damages. (2) A decree that all the described property was held by the decedent as trustee for the plaintiff and received by the defendant subject to this trust. (3) A decree that the defendant render an account of all this property, which the decedent held as trustee for the plaintiff and which came into the hands of the defendant.

The administrator does not claim that the plaintiff made a gift of these funds to the decedent, nor could it successfully upon the finding. Its claim is that the decedent husband reduced these funds to his possession, and by the law of his then domicile, Kentucky, he thereupon became, and the plaintiff ceased to be, their owner. At the time of the marriage of the plaintiff and her husband in 1888, the common-law rule was in force in Kentucky, and interpreted by the court of that state to be that the husband acquired no rights in choses in action (Woolley v. Holt, 77 Ky. [14 Bush] 790; Rissberger v. Louisville [Ky.] 118 S.W. 319; Mills v. Shepard, 30 Conn. 98, 101) such as the funds evidenced by the checks turned over to the decedent, belonging to his wife during marriage until he reduced them to possession ( Baker v. Red, 34 Ky. [4 Dana] 158). The plaintiff concedes this to have been the law of Kentucky; she asserts that it has no application in this case, since the place of domicile of McDonald was Massachusetts and not Kentucky. The common-law rule did not then prevail in Massachusetts, so that the determination of McDonald's domicile is of primary importance. McDonald was born, domiciled, and married his first wife in Springfield, Mass., and while in the employ of the Travelers' Insurance Company in March, 1880, he was sent by the company to Louisville, Ky. to become cashier of its agency there, and remained in that occupation until 1899. His first wife, who accompanied him to Louisville, soon died, and he brought her body to Springfield for burial, and made after this time only one visit to Springfield. He married, as we have stated, as his second wife, the plaintiff, in Louisville; they lived together in different boarding places for about eleven years, and then, in 1899, removed to Hartford at the summons of his company, and, except for nine months in 1902 when the company sent him to Philadelphia, and in 1905, when the company sent him to Cleveland for seven months, they lived together in Hartford, boarding during all of this period, until McDonald's decease October 21, 1912. McDonald's domicile in Hartford after his removal there appears to be one of the accepted facts in this case. In 1886, in an application for insurance, McDonald answered a question as to his residence by stating it to be Louisville, and in certain deeds executed by himself and wife they are described as of that city. The trial court finds that at the time of his marriage McDonald had no intention of returning to Springfield, nor did he regard that as his permanent place of abode, or his home. At this time, and at no time during his residence in Louisville, did he have any definite intention of making that his permanent place of abode, but, on the other hand, he had no definite intention of moving elsewhere, and expected to retain his employment and continue to live there for an indefinite time in the future. From these facts the court drew the conclusion that McDonald had his domicile in Louisville at the time of his marriage and during his residence there until he removed to Hartford. The plaintiff's domicile followed that of her husband under the rule of law adopted in Kentucky, and similarly adopted in Massachusetts and Connecticut. Townes v. Durbin, 60 Ky. (3 Metc.) 352, 358, 77 Am.Dec. 176; Mason v. Homer, 105 Mass. 116; Mason v. Fuller, 36 Conn. 160, 162. In a well-considered decision the trial court stated its view of the law upon these facts to be:

" It is true that many cases give as one of the necessary conditions to work a change of domicile an intent to make of the new residence a permanent home. Those cases seem to me to overlook those situations where there is an abandonment of the former place of residence, with no intent to return to it, an actual residence in another place for a considerable time, and an absence of any definite intent to go elsewhere. To hold in such a case that the domicile continues in the former place of residence hardly seems to me a possible conclusion."

Applying this rule, the court concluded:

" That McDonald had his domicile in Kentucky at the time of his marriage seems to me not to admit of doubt."

No finding is made as to what constituted the acquisition of a domicile in Kentucky, and we do not find that up to April, 1890, when the plaintiff turned over these funds to her husband, the Court of Appeals of Kentucky had determined the rule for that jurisdiction. Under these circumstances we must presume the law of Kentucky to be the same as our law. American Woolen Co. v. Maaget, 85 A. 583, 86 Conn. 234, 243, Ann.Cas. 1913E, 889;...