S.S. Pierce Co. v. Fiske

• Citation: 237 Mass. 39,129 N.E. 609
• Parties: S. S. PIERCE CO. v. FISKE et al.
• Decision Date: 08 January 1921
• Court: United States State Supreme Judicial Court of Massachusetts

237 Mass. 39

129 N.E. 609

S. S. PIERCE CO.

v.FISKE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 8, 1921.

Appeal from Municipal Court of Boston, Appellate Division.

Action by the S. S. Pierce Company against Abby M. Fiske, with the Houghton Mifflin Company as trustee, wherein defendant was defaulted; plaintiff moving that the trustee be charged on its answer, and defendant, as executrix of the will of John Fiske, claiming the funds in the hands of the trustee, the claim being disallowed, the case was reported to the Appellate Division of the Municipal Court of the City of Boston, which dismissed the report, and claimant appeals. Judgment dismissing report reversed, and order directed discharging the trustee.

William A. Lackey, of Boston, for appellant.

Harvey P. L. Partridge, of Boston, for appellee.

CARROLL, J.

In this action on a judgment recovered against Abby M. Fiske, she was defaulted. The trustee answered that it was holding sufficient funds to satisfy the judgment, and that the funds were royalties from copyrights formerly owned by John Fiske, the deceased husband of the defendant. Abby M. Fiske was appointed executrix of the will of John Fiske, which gave her all his property, and which was allowed in 1901. She gave a bond in the sum of $200,000 without sureties. No account has been filed in the probate court and the estate has not been represented insolvent. As executrix of the will of John Fiske, she appeared as claimant, contending that whatever funds were due from the trustee were due her as the executrix of her husband's will and not personally, and for this reason they could not be held by trustee process for a debt owed by her as an individual. The plaintiff's motion to charge the trustee was allowed, and the claimant appealed.

The report states that the sole question in the case ‘is whether the money which Houghton Mifflin Company is holding belongs to the defendant Abby M. Fiske in her capacity as executrix of the will of her husband or whether the money belongs to her personally.’

The trustee was chargeable if it had in its possession goods, effects or credits belonging to the defendant Mrs. Fiske. R. L. c. 189, § 19. But it could not be held as her trustee under the statute unless the relation of debtor and creditor existed between them, and it had in its hands property which belonged to her. Massachusetts National Bank v. Bullock, 120 Mass. 86;Field v. Crawford, 6 Gray, 116, 117;Wart v. Mann, 124 Mass. 586. ‘To constitute the relation of trustee, there must be a privity of contract, express or implied, between the principal debtor in the trustee process and him who is sought to be charged as his trustee.’ Williams v. Boardman, 9 Allen, 570, 571. See Hooker v. McLellan, 127 N. E. 626.

Mrs. Fiske was the sole legatee under her husband's will, and although the will was allowed in 1901, no account has been filed in the probate court and no distribution of the estate has been made. Under our law the settlement of the estates of deceased persons is under the direction of the probate court, its jurisdiction is exclusive, and the title to the personal property of a deceased person, from the time of his death vests in his executor or administrator, and no one else can maintain an action for it. Fletcher v. Fletcher, 191 Mass. 211, 77 N. E. 758;Hatch v. Proctor, 102 Mass. 351, 353; Lawrence v. Wright, 23 Pick. 128; Graffam v. Ray, 91 Me. 234, 39 Atl. 569. See Moyer v. Bray, 227 Mass. 303, 116 N. E. 511; Day v. Old Colony Trust Co., 232 Mass. 207, 122 N. E. 189, 2 A. L. R. 1554, Id., 228 Mass. 225, 117 N. E. 252.

The sole legatee could not retain the property against the executor, and until proper proceedings are taken in the probate court, the legatee could not maintain an action against the trustee. Pritchard v. Norwood, 155 Mass. 539, 30 N. E. 80;Cathaway v. Bowles, 136 Mass. 54;Flynn v. Flynn, 183 Mass. 365, 67 N. E. 314, and cases cited.

The trustee therefore did not have in its possession when service of process was made, goods, effects or credits belonging to the defendant. The royalties from the copyrights held by it belonged to the executrix of the will of John Fiske and not to Mrs. Fiske individually.

The fact that Mrs. Fiske has neglected for eighteen years to file an account in the probate court, is not of itself sufficient to show that the title to the property has vested in herself as legatee, and mere delay did not give her ownership of the money. See in this connection Field v. Hitchcock, 14 Pick. 405.

If it were a question of taxation, Mrs. Fiske probably would continue to be liable to taxation in her capacity as executrix. St. 1909, c. 490, pt. 1, § 23, fifth and seventh. Welch v. Boston, 211 Mass. 178, 97 N. E. 893;White v. Mott, 182 Mass. 195, 65 N. E. 38. There is nothing in Massachusetts...