Sargent v. Wood

• Citation: 81 N.E. 901,196 Mass. 1
• Parties: SARGENT v. WOOD et al.
• Decision Date: 14 June 1907
• Court: United States State Supreme Judicial Court of Massachusetts

196 Mass. 1

81 N.E. 901

SARGENT v. WOOD et al.

Supreme Judicial Court of Massachusetts, Worcester.

June 14, 1907

COUNSEL

Webster Thayer, Hollis W. Cobb, and Fred A. Walker, for plaintiff.

Sheehan & Cutting, for defendant.

OPINION

KNOWLTON C.J.

The plaintiff, as administrator de bonis non of the estate of David F. Wood, brings this bill to obtain the proceeds of a fund of $20,000, and more, abstracted from the estate by Arthur E. Wood, a former administrator, and turned over to his wife, Clara H. Wood, without consideration, and by her invested in two mortgages of $10,000 each, which are now held by her against the estate.

The first defense relied on is that the plaintiff should seek his remedy through the account of the former administrator, and by an action on the probate bond. This remedy, however, is not exclusive, and, upon the facts found by the master in this case, it would be inadequate. This suit is not to obtain an account of the settlement of the estate, which should be rendered in the probate court as a part of the proceedings under the statutes. It is founded upon a well-recognized ground of jurisdiction in equity, that property held under a trust may be followed by those interested as beneficiaries, so long as it can be identified, and may be appropriated by the court to the uses for which it was intended. This defense is without foundation.

The master has found that more than $20,000 belonging to the estate was taken by Arthur E. Wood, while administrator, and deposited in the name of his wife, and held and controlled by her, of which $10,000 was used in paying one of these mortgages which was assigned to her, and $5,000 in partly paying the other mortgage, which was also assigned to her the remaining $5,000, used to make full payment of the mortgage, having been borrowed by her from her brother. These facts justify and require the relief given to the plaintiff by the final decree, covering the whole of one of the mortgages and all but $5,000 in amount of the other mortgage. Otis v. Otis, 167 Mass. 245, 45 N.E. 737, and cases cited; Pennington v. Smith (C. C.) 69 F. 188; Pomeroy on Equity (3d Ed.) §§ 1047 [81 N.E. 902] , 1048; Perry on Trusts (5th Ed.) §§ 217-220.

The only doubtful question in the case is whether the plaintiff is entitled to relief in this suit for the remaining $5,000 of trust funds, abstracted by the former administrator, and received without consideration and appropriated by the other defendant. It is clear that the plaintiff cannot prevail, as to this part of the funds, on the ground that it was used to pay for the mortgage. The female defendant had money to this amount belonging to the estate, and used it otherwise. It was decided in Otis v. Otis, ubi supra, that in a case of this kind the plaintiff has a right to compensation as alternative relief. See, also, Perry on Trusts (5th Ed.) § 843. Upon the facts found by the master, the plaintiff is entitled to payment of this part of the fund from the defendants, and under Rev. Laws, c. 159, § 3, inasmuch as the interest of the female defendant in the mortgage cannot be come at to be attached, and as she has no other visible property from which to collect this amount, there is jurisdiction in the court to apply her remaining interest in the mortgage to the satisfaction of this debt. Barry v. Abbott, 100 Mass, 396; Anthracite Insurance...