Otis v. Otis

• Decision Date: 06 January 1897
• Citation: 45 N.E. 737,167 Mass. 245
• Parties: OTIS v. OTIS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

167 Mass. 245

45 N.E. 737

OTIS v. OTIS et al.

Supreme Judicial Court of Massachusetts, Hampden.

January 6, 1897

COUNSEL

William H. Brooks and Walter S. Robinson, for appellants.

Jonathan Barnes, for appellee.

OPINION

HOLMES J.

The master finds that the fund in question belonged to the plaintiff, that it was received by the defendant Samuel F Otis as a gift from the plaintiff's husband, who received it as her agent or trustee, and that it was distributed by Samuel F. Otis among his four daughters, the other defendants, also as a gift. These findings were not excepted to, and are not discussed in the defendants' argument and therefore we assume them to be correct, as we see no reason to doubt that they are. They are sufficient to establish the plaintiff's right to recover without regard to her exceptions or to the judge's additional findings. A person to whose hands a trust fund comes by conveyance from the original trustee is chargeable as a trustee in his turn if he takes it without consideration, whether he has notice of the trust or not. This has been settled for 300 years,--since the time of uses. "If the feoffees enfeoff one without consideration it is to the first use although it be without notice." Y.B. 14 Hen. VIII. p. 9, pl. 5; Chudleigh's Case, 1 Coke, 120, 122b; Mansell v Mansell, 2 P.Wms. 678, 681; Clark v. Flint, 23 Pick. 231, 243; Atlantic Cotton Mills v. Indian Orchard Mills, 147 Mass. 268, 272, 273, 17 N.E. 496; Lewin, Trusts (9th Ed.) 976; 1 Perry, Trusts (4th Ed.) §§ 217, 220.

By the bill as originally filed the plaintiff sought to recover an identified fund supposed to be deposited in a trust company subject to the order of the defendant Samuel F. Otis. When it appeared that before the bill was filed he had withdrawn the fund, a prayer was added that he might be ordered "to pay over said moneys to the plaintiff." And when it appeared further that he had transferred the fund to his daughters, a further amendment joined them and prayed that they might "be ordered to transfer said funds to the plaintiff." These prayers look, primarily perhaps, to the recovery of an identified fund, wherever it may be found. It turns out, however, that the fund is gone, and has been misappropriated by the concurrent action of all the defendants. Under these circumstances the plaintiff has a right to compensation as alternative relief, and is entitled to a decree against all the parties...