Tarbox v. Palmer

• Decision Date: 17 May 1913
• Citation: 110 Me. 436,86 A. 847
• Parties: TARBOX v. PALMER et al.
• Court: Maine Supreme Court

86 A. 847

110 Me. 436

TARBOX

v. PALMER et al.

Supreme Judicial Court of Maine.

May 17, 1913.

Appeal from Supreme Judicial Court, York County, in Equity.

Bill in equity by Fred A. Tarbox against Francis Palmer and others. From a decree sustaining the bill, defendants appeal. Affirmed.

Argued before SAVAGE, C. J., and CORNISH, KING, and HANSON, JJ.

Cleaves, Waterhouse & Emery, of Biddeford, and James O. Bradbury, of Saco, for appellants.

Clinton C. Palmer, of Biddeford (Robert B. Seidel, of Biddeford, on the brief) for appellee.

SAVAGE, C. J. This bill in equity is brought as an equitable trustee process under R. S. c. 79, § 6, par. 9, for the purpose of reaching and applying to a debt due to the plaintiff from Clinton C. Palmer certain money and other property in the hands of some of the defendants. The debtor was made a party. The other defendants are the executors of the will of Elizabeth C. Palmer, one of whom, Francis Palmer, is also trustee for Clinton C. Palmer under the will. The defendant Clinton C. Palmer makes no defense. A decree having been entered by the sitting justice sustaining the bill, the defendants, other than Clinton C. Palmer, appealed, and their appeal is now before us for determination.

The will of Mrs. Palmer and the Clinton C. Palmer trust have been considered by the court in several prior cases. Holcomb v. Palmer, 106 Me. 17, 75 Atl. 324; Palmer v. Estate of Palmer, 106 Me. 25, 75 Atl. 130, 19 Ann. Cas. 1184; Haley v. Palmer, 107 Me. 311, 78 Atl. 368. The trust expressed in the will was in these words: "I give, bequeath and devise all the rest and remainder of my estate to such of my children as may outlive me, share and share alike, but I will that the portion which would fall to my son Clinton C. Palmer shall be held in trust for him by my son Francis to be used for his comfort and necessities according to the discretion of my said son."

In Holcomb v. Palmer it was held that Clinton C. Palmer received his share in equitable fee simple in trust; that the legal estate passed to the trustee, Francis Palmer; that the beneficiary interest passed to the cestui que trust, Clinton; and that the trust would terminate at the death of Clinton, when any portion of the trust estate remaining would pass by his will, if he died testate, or descend to his heirs, if he died intestate. But it was also held that Clinton's equitable interest could not be reached by trustee process in an action at law.

In Haley v. Palmer, the bill, like the present one, was brought to impress upon the funds in the hands of the executors and trustee an equitable liability for the payment of a debt of Clinton C. Palmer. It was held that the bill would lie, and the trustee was ordered to pay the debt out of the trust property or funds in his hands. The case of Haley v. Palmer differs from the present case in this respect in that case there was sufficient property actually in the hands of the trustee to satisfy the claim. In this case there is not, and the plaintiff asks to reach certain shares of stock and the dividends received thereon, or their market value, which he says were set apart as Clinton's share in the estate of his mother, and now equitably belong to him, but which the defendant's executors say still remain in the residuum of the estate and have never been distributed or assigned to Clinton's trustee. It may be added here that the trust estate, claimed to have been set apart for the benefit of Clinton, whether in the hands of the executors or of the trustee, or of both, less proper credits, is insufficient to pay the plaintiff's claim in full.

The case shows that defendant's executors, the trustee being one of them, filed in September, 1908, in the probate court, their first account in which they charged themselves for "dividend on Pepperell Manufacturing Company (6 shares held for Clinton Palmer) $36," and for "dividend on Pennsylvania Steel (10 shares held for Clinton Palmer) $35." They asked to be allowed as paid or delivered to each of four of the residuary legatees, as follows: 6 shares of Pepperell stock and 10 shares of Pennsylvania Steel stock, of the aggregate value of $2,550, for each of these legatees. They then stated as showing the balance of the estate in their hands: Cash in bank, $1,220.62; railroad stock appraised at $425; furniture appraised at $553; 8 tons of coal; and "special fund held for trustee of Clinton Palmer:

Pepperell Mfg. Co., 6 shares appraised at

$1,770

Dividend Pepperell Mfg. Co., paid Feb. 1, '08

36

Pennsylvania Steel, 10 shares appraised

780

Dividend Steel, paid May 1, '08

35

$2,621"

It will be noticed that the stock described in this "special fund" was valued in the aggregate at the appraisal in the sum of $2,550, the same amount for which they asked to be allowed as paid or distributed to each of the other residuary legatees.

It does not directly appear in the record whether this account was allowed by the probate court as stated; but the balance charged to the executors in their second account...