Pauline Gray Et Al v. Brattleboro Trust Co

• Decision Date: 09 November 1923
• Citation: 122 A. 670,97 Vt. 270
• Parties: PAULINE GRAY ET AL v. BRATTLEBORO TRUST CO
• Court: Vermont Supreme Court

122 A. 670

97 Vt. 270

PAULINE GRAY ET AL v. BRATTLEBORO TRUST CO

Supreme Court of Vermont

November 9, 1923

February Term, 1923.

APPEAL IN CHANCERY. Heard on pleadings and facts found by the chancellor, at the September Term, 1921, Windham County Fish, Chancellor. Decree for defendant dismissing the bill with costs. The plaintiff appealed. The opinion states the case.

Decree affirmed and cause remanded.

Holden & Healy for the plaintiff.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

TAYLOR

The bill of complaint is brought by Pauline Gray with whom her minor children and their guardian join as plaintiffs, for an accounting by the defendant of funds awarded as alimony in her suit for divorce, and for the removal of the defendant as trustee. It was stipulated between the parties to the divorce proceedings, subject to the approval of the court, that in the event a divorce should be granted to the petitioner (the plaintiff Pauline), she should be decreed the custody of the minor children and that the guardian of the petitionee should "pay two thousand dollars to the Brattleboro Trust Company, as trustee, as alimony, the same to be used and expended for the support of said petitioner and children." The plaintiff was granted a decree of divorce giving her the custody of the minor children and alimony "as per stipulation on file." The chancellor has found the following facts: Soon after the divorce was granted Gray's guardian delivered to the defendant's treasurer a check signed by him as guardian for two thousand dollars, payable to the order of the defendant, stating that the check was for alimony in the case of Gray v. Gray. The treasurer did not understand that the check was to become a trust account, but that it was to be deposited to the credit of Mr. Piper as attorney for Mrs. Gray. The check was so deposited upon its receipt. Piper had acted as Mrs. Gray's attorney in procuring the divorce and in securing places for her and her children to live, also in advising her as to her legal rights and attending to the payment of bills which she had contracted or he had contracted for her. When the divorce was granted bills to a considerable amount that had been contracted for the benefit of Mrs. Gray pending the divorce were due and unpaid, and Piper had not been paid for his services and expenditures. In an interview with the officers of the defendant, Piper "represented" that he would pay from the deposit the debts contracted by Mrs. Gray for her maintenance and that of her children and for procuring the divorce. The defendant honored checks drawn by Piper as attorney for Mrs. Gray aggregating $ 849.50. The bills so paid were for the maintenance of Mrs. Gray and her children after she left her husband and was living apart for a justifiable cause and for procuring her divorce, and included his own bill of $ 500 for procuring the divorce and rendering legal advice and assistance to Mrs. Gray in connection therewith. The balance of the fund ($ 1,150.50) was turned over by Piper to the defendant as a trust fund "for the benefit of Mrs. Gray."

The defendant admits in its answer that it received the $ 1,150.50 as a trust fund and accepted said trust, but denies that the sum of $ 2,000 was received as trustee or in any other capacity than as a bank of deposit in the ordinary course of business. The chancellor states that he is unable to find that the defendant had notice of the trust as created in the stipulation for alimony until after the deposit was made by Piper. He finds that, since the receipt of this deposit, the defendant has acted as trustee, applying said fund to the uses of Mrs. Gray and her children upon her requisition, and refusing no application by her for funds except a request that the whole be turned over to her, which the defendant declined to honor except upon the order of the court. The chancellor further finds that the payments made by the defendant on Mrs. Gray's requisition were within the provision of the trust, and the account as trustee is approved and allowed.

On the facts found the bill was dismissed; the balance in the hands of the defendant as trustee, after deducting an allowance for services and a further sum paid for attorney's fees in the defense of the action, was ordered paid in equal shares to Mrs. Gray and the guardian of the minor children; and the defendant was discharged and relieved from further liability on account of the trust. From the decree the plaintiffs have appealed. The plaintiffs claim that the stipulation with the order of court thereon created an express trust of the entire amount, with which the defendant was chargeable as trustee. This presents the principal issue of the case.

The chancellor's findings contain this reference to the evidence: "The exhibits and record may be referred to for the purpose of showing whether the findings are within the testimony." Eleven exceptions to the findings were duly filed by the plaintiffs. The exceptions were not expressly overruled, but the decree being adverse they were impliedly overruled. Davis v. Union Meeting House Society, 92 Vt. 402, 105 A. 29. The first three exceptions were to the admission of certain evidence. In cases arising since the adoption of G. L. 1511, exceptions to the admission of evidence in trials by the chancellor are made available...