State v. Hunter

• Decision Date: 18 December 1900
• Court: Connecticut Supreme Court
• Parties: STATE v. HUNTER et al.

47 A. 665

73 Conn. 435

STATE

v. HUNTER et al.

Supreme Court of Errors of Connecticut.

Dec. 18, 1900.

Appeal from superior court, Fairfield county; Milton A. Shumway, Judge.

Action by the state against Samuel S. Hunter and others on a probate bond. Judgment for plaintiff. Defendants appeal. Affirmed.

The following facts appeared in the findings of the superior court:

The will of John Goodsell, who died in 1886, contained, among other things, the following provisions: A farm was left to his executor in trust for a brother, Lewis Goodsell, during his life. After his death it was to be sold, and the proceeds to become part of a fund created by these words: "I will and direct further that as early as may be proper, at the discretion of my executor hereinafter named, all the rest of the real estate I may be possessed of at my decease shall be sold, and the avails thereof, together with the residue of my personal estate, shall be invested in a common fund, to be held and managed by my said executor as trustee, for the period of twenty years from the date of my decease; the income to be distributed semiannually, in equal sums, to the following named persons, subject to the conditions and limitations hereinafter expressed.'" Lewis Goodsell was one of nine persons thus named, and the following provision was made as to his share in the principal of the fund: "If my said brother shall be living at the time of the distribution of the principal of said fund, at the end of said period his share therein shall be held by my executor or trustee, and the income only of such share be paid over to him, the said Lewis, during his natural life." Subject to this provision, the fund was to "be distributed * * * at the end of said period of twenty years" to certain persons named. Rowland B. Lacey was appointed executor. The will was probated, and in March, 1886, Lacey qualified as executor, and filed a probate bond as such. In 1887 he sold part of the real estate for $5.689.73. All the personal estate was used in paying debts and legacies. There is no order of the probate court on record setting over the avails of said sale to any trustee. In 1888 Lacey rendered an account to the probate court, headed: "Estate of John Goodsell, Deceased. R. B. Lacey in Account with Fund for Heirs under the Will,"—and signed: "R. B. Lacey, Trustee." In this account he debited himself with $5,689.73 as the net proceeds of said sale of real estate, and also with certain income, credited himself with payments of said income to the nine beneficiaries designated in the fourth clause of the will, and charged himself with the possession of assets as follows:

Deposit in City Savings Bank, Bridgeport

$ 800 00

George B. Mills, Westport, note secured by mortgage

750 00

R. B. Lacey, bpt., note, $1,500, and mortgage purchased of S. S. Hunter to cover

1,425 29

M. L. Hunter, note, $2,000, and mortgage to cover

1,902 25

Eli L. Goodsell, note against his interest

632 19

Herman B. Goodsell, ditto

180 00

$5,689 73

He rendered no further account in relation to the proceeds of said real estate until February 28, 1894. He then rendered an account headed, "R. B. Lacey, Trustee, in Account with Legatees under the Will of John Goodsell, Deceased," and signed, "Rowland B. Lacey, Trustee." In this he debited himself with income received to that date, and credited himself with income paid to said nine beneficiaries. He also annexed thereto a statement designated "Assets of Fund," and reading as follows:

Deposit in Bridgeport City Savings Bank .......................... $ 520 00

George B. Mills, note and mortgage. . 750 00

M. L. Hunter, note and mortgage. .. . 2,000 00

Note and mortgage in favor of S. S. Hunter, assigned to R. B. Lacey, trustee, &c..................... 1,600 00

Eli L. Goodsell, note and interest to December 10, 1893.............. 694 68

Herman B. Goodsell, note and interest to December 10, 1893........ 188 96

$5,753 64

On or about February 28, 1894, the defendants and Lacey executed and caused to be lodged with the probate court the bond in suit, the condition of which was as follows: "Whereas, the said Rowland B. Lacey has been duly appointed by the last will and testament of John Goodsell, late of Westport, in said district, deceased, executor thereof, and trustee of a certain fund therein created, and said will has been approved by said court, and has accepted said trust: Now, therefore, if the said Rowland B. Lacey shall faithfully discharge the duties of his said appointment according to law, then this obligation shall be void, otherwise to remain in full force." Between February 28, 1894, and his decease on March 31, 1897, said Rowland B. Lacey did not render any further account to said probate court. In and after March, 1894, Lacey withdrew the $520 from the Bridgeport Savings Bank, leaving on deposit there at the time of his death only $3.19. The Mills note was collected by him, and the mortgage discharged. The note in favor of S. S. Hunter was his own note, indorsed back to him as trustee under will of John Goodsell, deceased, or order, by the payee, without recourse. It was executed February 28, 1894, and secured by a first mortgage, but this security was released to him March 28, 1895. The notes of Eli L. Goodsell and Herman B. Goodsell were never secured, unless by the fact that they were beneficiaries under the trust. The M. L. Hunter mortgage was a second mortgage, but Hunter was financially responsible. Lacey's executor found among the trust-fund assets another unsecured note of Herman B. Goodsell for $200, not mentioned in either of the probate accounts.

Upon the trial of the case the plaintiff's counsel disclaimed a recovery in this action for any breaches of trust on the part of said Lacey as executor. The defendants claimed, as matter of law: (1) That R. B. Lacey did not become trustee under the will until the bond in suit was approved by the court of probate; (2) that the investments made by Lacey of the proceeds from the sale of real estate were made by him as executor; (3) that the breaches of duty of which said Lacey was guilty prior to the approval by the court of the bond were committed by him either as executor or as a private individual; (4) that the defendants are not liable for any breaches of trust which said Lacey was guilty of, prior to the approval of said bond, by reason of any obligation imposed upon them thereby to answer for the faithful performance by said Lacey of his duties as trustee; (5) that the bond was never accepted and approved by the probate court; and (6) that the return filed by R. B. Lacey on February 28, 1894, charges him with specific items therein contained, and not with the sum of $5,753.44. All these claims were overruled. The plaintiff claimed, as matter of law, that Lacey was chargeable with the sum of $5,689.73 received from the sale of real estate, and constituting a trust fund under said will, and that as only $3.19 of this amount was forthcoming, so as to be turned over in properly invested funds to Benjamin F. Squires, who succeeded Lacey as trustee under said will, and as the deficiency was due to the acts of Lacey as trustee, the defendants were liable for the deficiency of $5,686.54, together with semiannual compound interest thereon from December 10, 1896, to the date of judgment, less, however, the dividends paid to said Squires from the insolvent estate of said Lacey, with compound interest computed thereon semiannually in like manner. The court allowed the defendants credit for the $2,000 M. L. Hunter note, and did not compute the interest with semiannual rests. This appeal was taken on May 1st to the term of this court which opened on June 5, 1900. On May 24th the appellee was notified by the trial judge that he proposed to alter the finding in respect to the statement of what claims it had made on the trial. The appellee protested against it, but the alteration was made and the finding refiled on May 29th. On June 2d the appellee filed a motion in this court asking it to correct the record by erasing the alteration, or else to continue the cause to enable it to prove in proper manner what was the fact as to the matter which was the subject of the alteration.

William D. Bishop, Jr., and Arthur M. Marsh, for appellants.

Zalmon Goodsell and others. Jeremiah D. Toomey, Jr., for appellant.

Patrick Coughlin. George P. Carroll, for appellee.

BALDWIN, J. (after stating the facts). The bond in suit recites the fact that Rowland B. Lacey has been duly appointed by the will of John Goodsell executor thereof, and trustee of a certain fund therein created, and has accepted said trust, and then provides that it is to be void "if the said Rowland B. Lacey shall faithfully discharge the duties of his said appointment according to law," but otherwise good. This action is against the sureties alone. The contract of suretyship is construed strictly, and the liabilities following from it cannot be extended by implication beyond its precise terms and scope. Bulkeley v. House, 62 Conn. 459, 470, 26 Atl. 352. The defendants, therefore, cannot be held to answer for any breaches of duty committed by Lacey prior to the delivery of the bond. At its date, February 18, 1894, he held two positions with reference to the will of John Goodsell. He was its sole executor. He was also acting as trustee under it of a part of the estate, which had been set apart as a special trust fund. In this latter capacity he filed, on the day named, an account of his trust in the court of probate, containing a statement of the trust assets. This included several items, to each of which a value was separately assigned, and the sum of which, by a correct addition, was given as $5,753.44. The bond was filed on or about its date, and duly recorded. The judge of probate indorsed upon it: "Estate of John Goodsell. Probate Trustee Bond. Accepted March 10, 1894. Recorded, Vol. 12, page 229." This memorandum,...