Wooden v. Kerr

• Citation: 51 N.W. 937,91 Mich. 188
• Court: Supreme Court of Michigan
• Decision Date: 08 April 1892
• Parties: WOODEN v. KERR et al.

51 N.W. 937

91 Mich. 188

WOODEN v. KERR et al.

Supreme Court of Michigan

April 8, 1892

Appeal from circuit court, Ingham county, in chancery; WILLIAM NEWTON, Judge.

Bill in equity by Walter K. Wooden against Alexander Kerr, as trustee, for an accounting, and for a conveyance by him to plaintiff of the trust property, against Charles J. Rayner and Verner J. Tefft, as mortgagees of the real property held in trust, and against Amos A. King, as administrator c t. a. and as trustee. From a judgment for plaintiff defendant Kerr appeals. Affirmed. A J. Sawyer, for appellant, Alexander Kerr. Haynes & Prosser, (Jay P. Lee and Parkinson & Day, of counsel,) for complainant appellee. Cahill & Ostrander, for other appellees.

GRANT J., (after stating the facts.)

We think the defendant Kerr is estopped to deny that he was an executor merely, and not a trustee, and that he and his co-executor took possession of and used the property as executors only. The will created the trust, appointed the trustees, and fixed their duties. No action of any court was necessary to complete this trust in them. Had they considered themselves as executors merely, it must be presumed that they would long ago have settled up the estate, and turned the property over to themselves as trustees. Instead, they took possession of the real estate as well as the personal property, and proceeded to carry out the trust as fully and effectually as they could have done if they had not been executors. They filed no account as executors for nearly three years. Equity will not now permit defendant Kerr to refuse an accounting as trustee, because the same instrument which made him a trustee also made him an executor, in which latter capacity he neglected for several years to render an account. The case of Cranson v. Wilsey, 71 Mich. 356, 39 N.W. 9, does not aid him. In that case the defendants sought to avoid liability as executors on the ground that they were trustees. In the present case the trustee seeks to defend against his liability as trustee, on the ground that he was an executor. It is immaterial in which capacity he is held, his liability is the same; and where his acts and conduct are entirely consistent with his obligation as trustee, he cannot complain when his cestui que trust calls him to an account in a court of equity.

It is no defense to Mr. Kerr that he settled with King as administrator, and paid over to him an amount which he and King agreed upon. It was King's duty to receive from Mr Kerr any and all property in his hands...