Pierce v. Woodbury

• Decision Date: 27 February 1905
• Citation: 100 Me. 1,60 A. 424
• Parties: PIERCE v. WOODBURY.
• Court: Maine Supreme Court

60 A. 424

100 Me. 1

PIERCE

v. WOODBURY.

Supreme Judicial Court of Maine.

Feb. 27, 1905.

Appeal from Supreme Judicial Court, Penobscot County. In Equity.

Bill by William B. Pierce, special administrator, against Frank H. Woodbury. Decree for complainant, and defendant appeals. Dismissed.

Argued before WHITEHOUSE, STROUT, SAVAGE, PEABODY, and SPEAR, JJ.

T. W. Vose, Hugo Clark, and Charles Hamlin, for plaintiff. P. H. Gillin, T. B. Towle, C. A. Bailey, and T. D. Bailey, for defendant.

SPEAR, J. This is a bill in equity, and comes up on appeal by the defendant. The bill avers that the plaintiff's decedent had on deposit in the Savings Bank of Bangor the sum of $3,958.21; that, being advised that she could live but a few months, she gave said deposits to her son, in trust for the following purposes, viz.:

The whole or any part thereof to be paid over to her and her creditors from time to time for her use, care, comfort, and convenience during her lifetime, to pay her funeral expenses, erect a tablet at her grave similar to the one at the grave of his father in Exeter, Me., and pay all her debts, and the remainder, if any, keep for his own use and benefit; and it was further agreed that said sums, when taken from the said banks, were to be by him kept in a box in some safety deposit vault, he to keep one key thereof, and one to be kept by his cousin, her nephew, Fred B. Robinson; that the defendant accepted said deposits for the purpose of executing said trust and carrying out said agreement, and promised to do so; that he had not only neglected and refused to keep his promise, but claimed that said deposits were not transferred to him in trust, but as an absolute gift. Further reference to the provisions of the bill are not necessary, as the finding of facts by the justice hearing the cause fully states the case, as follows:

"The plaintiff, Mary H. Deering, being confined to her home in Brewer with a lingering and painful disease, in February, 1903, had money on deposit in the Bangor Savings Bank and Penobscot Savings Bank, amounting to nearly $4,000. She had at the time next hereafter named no other money or property. About February 20th of that year she gave orders on each bank transferring the entire sum in each to her son, Frank A. Woodbury. He drew out all the money from both banks, and, instead of depositing it to his own credit, he converted it all into coin or currency, and deposited the coin and currency in a safe deposit box in the vaults of Tyler, Fogg & Co."

"She did not give him the money as an absolute, present sift, but she intrusted it to him, and he accepted it, as her bailee or treasurer, to pay over to her, on her order, on demand during her life, as she might call for it, and, if any remained at her death, to pay certain bills, and, if any then remained, to keep such remainder as his own. Out of the sum so received by him Mr. Woodbury had paid to her and her order during her life certain sums, and has also since her death paid certain bills according to her expressed wish before death." The last paragraph of the finding, being embodied in the decree, is omitted.

Upon this finding the court decreed:

(1) The bill is sustained with costs, and the injunction heretofore issued against the said Frank A. Woodbury in this cause is continued.

(2) All the money, funds, coin, and currency received by the said Frank A. Woodbury from the said Mary H. Deering, as set forth in the bill, was, and continues to be, the money, funds, coin, and currency of tie said Mary H. Deering until her death, and the same now are of the estate of the said Mary H. Deering in the hands of the plaintiff, as special administrator thereof.

The decree then appointed a special master in chancery, with the consent of the parties, to examine the accounts and vouchers of the said Frank A. Woodbury, and state the account between the said Frank A. Woodbury and the said Mary H. Deering. The special master reported that he found funds in the hands of the defendant, to be turned over to the administrator, in the sum of $2,803.68.

Objection was made to the acceptance of the report by the defendant, but the objection was overruled, and the report accepted, to which ruling the defendant excepted, and the exception was overruled. The case then came on to be further heard upon the master's report, and the justice further decreed:

"That the above-named defendant, Frank A. Woodbury, shall and is hereby ordered to pay, transfer, and deliver the coin, currency, and monies, in whatever form intrusted to him by the said Mary H. Deering in her lifetime as her bailee, as alleged in the said bill in equity and as heretofore adjudged, to the full amount of twenty-eight hundred and ninety-three dollars and sixty-eight cents ($2,893.68), to William B. Pierce, special administrator of the estate of the said Mary H. Deering, now deceased, within ten days after service upon him of a copy of this decree."

After a careful investigation of the evidence, we find no occasion whatever for disturbing the decree upon the merits of the case. The decree necessarily finds that the defendant failed to perform the conditions upon which the deposits intrusted to him were to become his vested property, and is amply supported by the evidence. The testimony is so overwhelmingly against the contention of the defendant upon this point that we deem it unnecessary to again allude to it upon this branch of the case.

The defendant raises several legal objections, however, to the validity of the decree:

(1) He says the bill sets forth a trust, a purely equitable relation; that Mrs. Deering, the plaintiff's decedent, in her deposition claimed a trust; that the answer denied a trust, but asserted a gift; and that, after hearing the evidence, the justice found no trust, and also no gift, but only a bailment— a purely common-law relation.

(2) That the decree does not follow the allegations in the bill, the justice finding no trust, but a bailment, and that upon such finding the bill should have been dismissed; that a person cannot allege one state of facts, prove another, and obtain relief; that evidence without allegation is as futile as allegation without evidence.

(3) That the decree cannot stand, and that the bill should be dismissed, because the plaintiff's decedent by her own will, duly proved and allowed, dismissed this whole proceeding, since the justice did not find that the conditions imposed by the will were not performed.

The first and second objections may be considered together, both being based upon the assertion that the justice in his decree found no trust. That is, his counsel, in their brief, say, "Assuming for the sake of argument that the judge who tried the case is correct in his findings of fact, then the defendant claims that the decree cannot be sustained, because it does not follow the pleadings." Let us see just what the issues tried out in the case were.

The bill alleged (1) a trust; (2) certain conditions to be performed under the trust; (3) that if the conditions were performed, then whatever was left of the trust fund should...