White v. Ditson

• Decision Date: 28 November 1885
• Citation: 4 N.E. 606,140 Mass. 351
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: George White, Judge of Probate, v. Oliver Ditson & another

140 Mass. 351

4 N.E. 606

George White, Judge of Probate, v. Oliver Ditson & another

Supreme Judicial Court of Massachusetts

November 28, 1885

Argued March 3, 1885

Norfolk.

Ordered accordingly.

E. M Johnson, for the plaintiff.

W. G Russell & J. Fox, for the defendants.

W. Allen, Holmes, & Gardner, JJ., absent. Devens, J.

OPINION

Devens, J.

The defendants, who are the sureties on the bond of the late John P. Healy, as executor of the will of John Percival, having admitted a breach thereof, the case at bar has been referred to an assessor to report the facts, and is now before us upon a reservation of the questions of law raised upon the facts stated in his report, and in the subsequent agreement of additional facts by the parties.

It is not denied that Healy, as executor, paid all the debts, specific legacies, and funeral expenses of the testator. The first and most important inquiry is as to the responsibility of the sureties for that which came into his hands under the residuary clause of the will.

This is in the words following: "All the rest and residue of my property and estate, real, personal, and mixed, of which I shall die seised, or to which I may be entitled at the time of my decease, I give, devise, and bequeath to the said John P. Healy, to be disposed of by him for such charitable purposes as he shall think proper."

This clause is preceded by one which gave to Healy a sword and a portrait of the testator, to be disposed of "in such way and manner" as he might think "fit and proper." The earlier clause differs from that we are considering in the important respect that no restraint is placed upon the disposition Healy might make of the articles therein bequeathed, while the property bequeathed by the latter clause is "to be disposed of" by him for "charitable purposes," although the selection of the objects of the charity which should receive the bounty was left to Healy.

The word "charitable" has a distinct legal meaning, derived from the St. of 43 Eliz. c. 4, from the construction given to it in the definition of its objects of charity, and from the application of the statute to other uses which are not included in those there enumerated, but which come within its spirit by analogy. While the gift to Healy is not, in terms, in trust, the object for which it is confided to the donee distinctly appears to be its distribution to charitable purposes. For this only it is entrusted to him. He took the gift for no purpose personal to himself, nor in any manner for his own use, and had no beneficial interest therein. It is not material, therefore, that the words "in trust" are not found in the terms of the bequest. Nichols v. Allen, 130 Mass. 211. Schouler, petitioner, 134 Mass. 426.

While a bequest which could be applied to purposes other than charitable might be held too indefinite to be carried out, the limitation of its distribution to purposes well defined and deemed worthy of particular protection, even if various, would enable the court, were the fund still in the hands of the trustee, to compel him to execute this clause of the will by the selection of the charitable purposes to which the fund should be devoted. The testator has shown his intention to dispose of this gift for charitable purposes generally, and a confidence has been reposed in the trustee to make a selection of the objects of charity. If therefore the trustee proceeds in good faith, and with reasonable diligence, to divide and distribute such a legacy for purposes which could properly be called charitable, either by directly applying it to objects thereof, or transferring it to responsible societies or associations formed for such purposes, a court of chancery would not interfere with the exercise of his discretion. Should he refuse to do this, there would be no serious difficulty in compelling, by the proper agencies of such a court, the execution of the trust, and in preventing the fund from being misappropriated to selfish uses. Saltonstall v. Sanders, 11 Allen 446. Loring v. Marsh, 2 Cliff. 469; 6 Wall. 337. Marsh v. Renton, 99 Mass. 132. Attorney General v. Gleg, 1 Atk. 356.

Whether the power to select charitable objects was strictly limited to Healy, on account of the personal confidence reposed in him, so that, if he had declined to accept the trust, or if he had deceased without completing the execution of it, it could not be executed by the intervention of the court, and, the trust thus failing, the fund should go to the next of kin, -- or whether, the testator having distinctly shown his intention that it should be devoted to charitable purposes generally, it should be held that the power of selection was attached to the trust, so that it might be executed through a trustee, who should carry into effect the controlling purpose of the testator under the supervision of this court, -- is a question not necessary now to be discussed. Loring v. Marsh, ubi supra. Fontain v. Ravenel, 17 How. 369.

The first inquiry is as to the liability of the sureties. While Healy fully completed the administration of the estate by the payment of all debts, legacies, and expenses, he settled no final account as executor, and did not, by any open and notorious act, discharge himself as such in the Probate Court by assuming to transfer the residue of the property to himself as trustee, or by any other act indicating an intention thereafter to hold the same for the purposes of the trust. The will gave to him two characters, those of executor and trustee; and the duties of the latter character were entirely distinct from and independent of those of the former. As actual payment cannot be made by one to himself, it has been held that, where the same person is executor and trustee, he must give bond in his character of trustee before he can exonerate himself from his liability as executor. Hall v. Cushing, 9 Pick. 395. Dorr v. Wainwright, 13 Pick. 328. Newcomb v. Williams, 9 Met. 525, 534. Conkey v. Dickinson, 13 Met. 51. Daggett v. White, 128 Mass. 398. Gen. Sts. c. 100, § 14. While it is not controverted by the defendants, that, if a case were presented where the trustee was legally compelled to give bonds, it would be necessary to show, by compliance with this requirement, that a transfer of the property was made by the executor, their principal contention is, that such is not the case at bar; and that, if it can be shown that Healy had fully completed his duties as executor, it must be held that the residue of the property was lawfully retained by him as trustee. This question will be of less interest hereafter, as, by the St. of 1873, c. 122, (Pub. Sts. c. 141, § 16,) every trustee is required to give at least his own personal bond, which certainly contemplates that, where the same person is executor and trustee, there shall be a distinct transfer of property to him in the latter capacity by authority of the Probate Court. Parker v. Sears, 117 Mass. 513. Even if this were a case where the trustee might be, and was by the will, exempted from giving bond, we should not be prepared to say that the facts that Healy ceased at a certain time to do any acts as executor, -- all that was necessary in that capacity being then completed, -- and thereafter did certain acts showing an intention to execute the trust, were alone sufficient, without any settlement of his account as executor in the Probate Court, to exonerate him and the sureties on his bond as executor. There should, in that case, be some public act, which could only take place in that court, indicating a discharge of himself in one capacity, and the acceptance of the trust imposed upon him in the other, before this transfer could take place. Newcomb v. Williams, ubi supra. This might perhaps be by any definite act assented to by that court, as where an executor, who had been appointed trustee, and had also qualified as such, charged himself in his account as executor with money paid to himself as trustee, which account had been allowed. Crocker v. Dillon, 133 Mass. 91.

In Taylor v. Deblois, 4 Mason 131, cited by the defendants, an administratrix, after a decree of the Probate Court ascertaining the distributive shares of the intestate estate, took the guardianship of one of the persons entitled to a share, who was a minor; it was held, that, by operation of law, she held the amount by way of retainer as guardian, and not as administratrix, and that no suit lay against her sureties upon the administration bond for the amount due her ward. But in that case, by a process in Rhode Island known as quietus, an administrator might be fully discharged by the Probate Court. This quietus, which was a decree rendered by that court, stated, in substance, that the administratrix had fully administered the estate, and ordered that "she be, and hereby is, from henceforth acquitted and discharged of the same." Before this quietus, she had signed a certificate to the Probate Court, which had been recognized by it, that she had in "her possession and control," as guardian, the shares of the minor whose property was afterwards wasted.

State v. Hearst, 12 Mo. 365, Coleman v. Smith, 14 S.C. 511, and Carroll v. Bosley, 6 Yerg. 220, also relied on by the defendants, are all cases where the question of responsibility arose between the sureties on the bond of the principal defendant as administrator and the sureties on his bond as guardian. In these it was held that, when the time for the settlement of the estate as administrator had fully expired, and the distributive shares of the minors had been ascertained, it must be deemed that thereafter the funds were held by the principal defendant as guardian, as that was the capacity in which hehad the right then to hold; and that the property was...