Turner v. Fryberger
| Decision Date | 19 October 1906 |
| Docket Number | 14,787 - (163 [2],5 [3] ) |
| Citation | 109 N.W. 229,99 Minn. 236 |
| Parties | CHARLES A. TURNER v. WILLIAM O. FRYBERGER |
| Court | Minnesota Supreme Court |
Original Opinion Filed July 20, 1906
Purchase of Estate.
A cestui que trust who consents to, or with knowledge of the transaction subsequently acquiesces in, the purchase of a portion of a trust estate, or of property in which the estate is indirectly interested, by the attorney for the trustee for the purpose of aiding the trustee in settling the estate, will not be heard to question the propriety of the transaction.
Administrator's Account.
On an appeal from an order of the probate court allowing the final account of an administrator, the district court cannot determine the right of the administrator to compensation for services rendered or for disbursements made subsequent to the filing of his account in the probate court. Although the matter is tried de novo, the district court exercises appellate jurisdiction only.
Findings.
Where the court has failed to make findings upon a material issue, it is error to refuse to make specific findings requested by a party upon such issue, when they are sustained by undisputed evidence or by such a preponderance of evidence that a finding to the contrary would not be allowed to stand.
A reargument having been ordered, the following opinion was filed on October 19, 1906.
A reargument was ordered in this case, and upon further consideration we have come to the conclusion that the order from which the appeal was taken must be reversed, and a new trial granted. The facts upon which the controversy arose are fully stated in the former opinion. 94 Minn. 433, 103 N.W. 217.
The case was tried in the district court upon the record brought up from the probate court and without formal pleadings. It is apparent that the principal issue on the trial was whether Turner had consented to the purchase of the life estate by Harrison E. Fryberger, or had subsequently affirmed, acquiesced in, and ratified the transaction. The rule which was announced in the decision of the former appeal is a necessary and salutary one; but it cannot be invoked by a beneficiary who consented to or ratified the improper transaction. "Volenti non fit injuria." A cestui que trust cannot allege that to be a breach of trust which has been done under his own sanction, whether by previous consent or subsequent ratification. Either concurrence in the act or acquiescence without original concurrence will relieve the trustee from responsibility to the beneficiary.
In Buell v. Buckingham, 16 Iowa 284, 85 Am. Dec. 516, it is said: In Vreeland v. Van Horn, 17 N.J.Eq. 137, Chancellor Green said: "It does not lie in the mouth of a cestui que trust * * * to complain of acts as breaches of trust which were occasioned by his own neglect." In Crutchfield v. Haynes, 14 Ala. 49, the court said: "If a cestui que trust assents to the violation of the duties of the trustee, his interest in the trust estate must be subjected to the protection of the trustee." In Hammond v. Hopkins, 143 U.S. 224, 12 S.Ct. 418, 36 L.Ed. 134, it was held that, if a cestui que trust acquiesces in the sale of the trust property to the trustee, he cannot have the transaction set aside. See also Butterfield v. Cowing, 112 N.Y. 486, 20 N.E. 369; In re Niles, 113 N.Y. 547, 21 N.E. 687; 1 Perry, Trusts, § 467; 28 Am. & Eng. Enc. (2d Ed.) 1123, et seq.
Hence if Turner consented that Harrison E. Fryberger might purchase the outstanding estate, or with knowledge of the facts, after the purchase, acquiesced in what had been done, and sought to avail himself of the results of the transaction, he was not in a position to question its propriety or legality. We are strongly impressed by the evidence which tends to show that Turner knew what was being done and assented to it, and that after the purchase had been made by Fryberger he acquiesced therein. If this is true, the injustice which results to the purchaser of the life estate by the application of the strict rule which forbids an administrator or his attorney to become personally interested in any part of the estate is apparent. But the trial court has not, so far as the record shows, passed upon this issue. It was clearly presented and litigated, and its determination was vital to the appellant's case. In his memorandum the trial judge states that no estoppel was made out, but this cannot take the place of a finding to that effect.
The statute requires the trial court to make findings upon all the issues in the case, and if there is a failure to find on all the material issues raised by the pleadings, or litigated by consent, the remedy is by a motion for additional findings. Dunnell, Minn. Pr. § 526, and cases there cited. Such a motion was made by the administrator in this case, and the court declined to make the findings asked for. It is...
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