Putnam v. Collamore

• Decision Date: 30 June 1876
• Citation: 120 Mass. 454
• Parties: George Putnam, Jr., administrator, v. John H. Collamore
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

120 Mass. 454

George Putnam, Jr., administrator, v. John H. Collamore

Supreme Court of Massachusetts

June 30, 1876

Argued November 18, 1875.

Suffolk. Appeal by John H. Collamore from a decree of the judge of probate, allowing the account of George Putnam, Jr., the administrator de bonis non, with the will annexed, of George W. Collamore, the ground of appeal being that the administrator should have charged himself in his account with three mortgages on a certain parcel of land in Richmond Street, Boston.

At the hearing in this court, before Wells, J., the question whether the administrator should so have charged himself, was reserved for the full court on a statement of facts, the material parts of which appear in the opinion.

Decree affirmed.

C. A Welch, for the appellant.

W. G Russell & G. Putnam, Jr., for the appellee.

Endicott J. Colt & Lord, JJ., absent.

OPINION

Endicott

The transactions recited in this report are somewhat complicated, and a condensed statement of the facts, in the order of their occurrence, will render the case more intelligible.

In March, 1853, Elias W. Goddard, as the agent and for the benefit of George W. Collamore, the testator, purchased of David A. Dunbar an estate on Richmond Street and took a deed in his own name. The estate was then subject to a mortgage for $ 1000, given by a former owner to Willard W. Stevens. This mortgage was recited in the deed of Dunbar to Goddard, with an express stipulation that it should be assumed and paid by Goddard, as part of the consideration named in the deed. Goddard gave back a mortgage to Dunbar in the sum of $ 3000. Fifteen hundred dollars was also paid by Goddard to Dunbar, which sum was furnished by Collamore and was the purchase money of the estate over and above the two mortgages. Of the $ 1500 so furnished by Collamore, $ 900 was obtained from Daniel Copeland, for which Collamore gave his note to Copeland, which was secured by a third mortgage on the estate given by Goddard to Copeland at the request of Collamore. Collamore went at once into possession of the estate, and took the rents and profits until his death; and after his death they were received and accounted for by the trustee under his will. In November, 1853, Collamore paid the amount of the note secured by the first mortgage, and the mortgage was assigned to him by Stevens; and in June, 1854, he paid $ 900 to Copeland, and the third mortgage was assigned to him. He never recorded either of the assignments. The second mortgage, on which Collamore had paid $ 500, was assigned by Dunbar to Francis S. Carruth in March, 1855.

On June 7, 1856, Goddard conveyed the estate, subject to the three mortgages, by deed to Charles J. Hubbard; and on the same day Hubbard reconveyed to Goddard, in trust for the uses and purposes set forth in Goddard's declaration of trust of even date. This declaration of trust is lost. Goddard, in a subsequent conveyance to John A. Andrew, recites that he made such a declaration, and that he covenanted therein that, if Collamore died without revoking the trust, he would convey the estate to such person as Collamore should appoint by his last will, as trustee of his estate, for the use and benefit of his wife and children, upon request by such trustee in writing.

Carruth in March, 1860, assigned the second mortgage, upon which $ 2500 was then due, to John A. Andrew, who took it at the request of Collamore, who furnished the purchase money. At this time Collamore was the equitable owner of other real estate, the legal title of which was held by Andrew.

In 1860, therefore, Goddard held the equity of redemption, in trust for Collamore, to convey it, if not revoked by Collamore in his lifetime, to the trustee named in Collamore's last will, for the use and benefit of his wife and children. The first and third mortgages had been assigned to Collamore. The second mortgage stood in the name of Andrew in trust for Collamore, who had paid the money.

Collamore died in August, 1862, leaving a will, which was dated June 11, 1856, in which Andrew was named as executor and trustee and he was duly appointed. After providing for the payment of his debts and giving authority to his executor to sell such parts of his real estate as may be necessary for that purpose, he gives the rest and residue as follows: "All the rest,...