New England Trust Co. v. Triggs
| Decision Date | 24 June 1959 |
| Citation | 339 Mass. 453,159 N.E.2d 415 |
| Parties | NEW ENGLAND TRUST CO. and another, trustees, v. Daniel J. TRIGGS, trustee. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Robert G. Dodge, Boston, Eric Verrill, Boston, for New England Trust co.
Daniel J. Triggs, Boston, for respondents.
Before RONAN, SPALDING, COUNIHAN, and WHITTEMORE, JJ.
This is an appeal by The New England Trust Company, hereinafter called the trust company, from part of a final decree of the Probate Court for Middlesex County, dated December 4, 1958. The part of the decree appealed from reads: 'after hearing it is further * * * decreed that there be awarded as costs and expenses to Daniel J. Triggs, Esquire, counsel for Daniel J. Triggs, trustee, the sum of five thousand dollars, and to Daniel J. Triggs, Esquire, counsel for the estate of Laura Mary Heisler Lacy, the sum of twenty-five hundred dollars to be paid by said The New England Trust Company.'
In the will of Lewis Dewart Apsley, Harriman A. Reardon and the trust company were bequeathed the sum of $200,000 in trust for certain purposes not here material. The principal at the time of the accounting was about $165,000. The trust company was the managing trustee of that trust.
Proceedings relative to the allowance of some of the accounts filed by the trustees have been before this court on two previous occasions. The decision of this court on the first occasion is reported in 334 Mass. 324, 135 N.E.2d 541, and in the opinion will be found a statement of facts relative to the delay in the distribution of the trust estate and to the appointment of Daniel J. Triggs as trustee. The decision in the second proceeding is reported in 337 Mass. 482, 150 N.E.2d 22. In the first decision we held that, notwithstanding an exculpatory clause in the Apsley will setting up the trust, the trust company as managing trustee was under a liability to the trust because it had failed to invest funds for an unreasonable time and had retained such uninvested funds and deposited them in a general account in its own 'banking department' in the name of the trust company as trustee, executor, guardian 'and so forth.' No interest was credited on this deposit by the trust company. It was said at page 340 of 334 Mass., at page 551 of 135 N.E.2d in that decision, 'Whether or not the failure to invest would be a 'breach of trust' apart from the aspect of profit to the trustee, we hold that there is liability here to account for the profits which resulted from such withholding, or alternatively for the fair value of the use of the money * * *.' The rescript in the first decision provided, 'Further hearing is to be had in the Probate Court for the purpose only of ascertaining the net profits of the commercial department in the relevant periods, and for alternative use, the fair value of the use of the deposited funds, and a new final decree is to be entered in accordance [with the opinion]'. (Emphasis supplied.)
The second proceeding came before us upon a report by the probate judge without decision upon what amounted to a stipulation of the parties as to the facts. The purpose of it was to seek the construction and application of the rescript in the first decision. We held in the second decision [337 Mass. 482, 150 N.E.2d 23] that 'in accordance with paragraph 4 of the stipulation * * * the amount with which the trust company is chargeable under this [first] alternative is $1,637.44 plus interest at six per cent per annum from September 19, 1951,' and in the second alternative that paragraph 6 of the stipulation establishes that the total liability of the trust company for the fair value of the use of the money is $5,193.64 with interest at six per cent from September 19, 1951. The rescript in the second decision provided that the
The final decree now before us, in addition to the allowance of counsel fees to Mr. Triggs in the amounts hereinbefore set forth, allowed the accounts of the trustees as modified in accordance with the...
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