317 Mass. 331 | Mass. | 1944
This is an appeal from a decree entered in the Probate Court allowing the sixth and final account of the trustee under the will of Charles H. Booth.
The evidence is reported and the fudge made a report of material facts found by him. The material facts so found and those we find ourselves (Lowell Bar Association v. Loeb, 315 Mass. 176, 178) may be summed up as follows: The trust estate involved consisted solely of real estate. On April 7, 1905, Edgar P. Booth and George A. Prediger were appointed trustees under the will of the testator and duly qualified. The first beneficiary under the trust was allowed by the trustee Prediger, who apparently had become the sole trustee, to collect and retain the rents from the real estate devised in trust with the consequence that taxes fell fn arrears and the property “became run down for want of repairs.” In 1916 .the trustees were authorized to mortgage the real estate to pay tax arrears and repairs, although it appears that the income had been sufficient to pay these charges. On July 31, 1934, the trustee Prediger was authorized by decree of the Probate Court to mortgage the real estate for $2,000 to pay for repairs and improvements on the building and other property of the trust estate and taxes. On September 24, 1934, he was also authorized in like manner to mortgage the real estate for $4,500 for the purpose of making “necessary repairs and improvements on the buildings upon said land and paying the mortgages for $2,150 . . . and taxes.” From the date of the appointment of the trustees in 1905 until November 12, 1935, no accounts of the administration of the trust were filed. On the latter date a first and final account was filed by Prediger and on the same date his resignation as trustee was filed. It was accepted thereafter and the present accountant was appointed and duly qualified as succeeding trustee under the will of the. testator on January 14, 1936. On February
There was no error in allowing the payments, made out of income, as shown in the account in question, for the purpose of reducing the principal of the mortgage. In so doing the accountant acted in accordance with the express instruc-. tions of the decree of the Probate Court to which the appellant's intestate assented. It is not open to the appellant to contend now that the accountant properly could not have paid out of income sums to make good expenditures made from principal, that is, on account of mortgages given by the former trustee to pay. items of taxes and repairs which were rightly chargeable to income of the trust estate in accordance with principles which we recognize are fundamental in trust accounting. See Parker v. Ames, 121 Mass. 220; Loring v. Salisbury Mills, 125 Mass. 138; Cogswell v. Weston, 228 Mass. 219; Mahoney v. Kearins, 282 Mass. 130, 138, and cases cited. The appellant in the instant case, however, is bound by the assent of her intestate both to the entry of the decree under which the accountant has proceeded and to its five accounts showing payments made in accordance therewith (see Turner v. Morson, 316 Mass. 678, 689,) and also by the decree itself which was not appealed from. Untersee v. Untersee, 299 Mass. 425, 426.
- With respect to the objection of the appellant relative to the reserve by the accountant of the tax assessed.on the real estate of the trust for the year 1942, we are of opinion that it was erroneous to allow the reserve of the full amount of the- tax for that year, but that instead the tax should be apportioned as of the date of death of the appellant's intestate, that is, March 4, 1942, between his estate and those
There was no error in the allowance of the item showing payment to counsel for the accountant in defending the allowance of its five accounts against the attack made upon them by way of the petition to reopen them which was fully heard and dismissed. This expense was one incidental to the administration of the trust estate (see Mahoney v. Kearins, 282 Mass. 130, 138), and in the circumstances was
During the course of the hearing the appellant sought to introduce in evidence the account of the former trustee, Prediger, which was allowed on February 27, 1936, and excepted to its exclusion. Since the appellant made no sufficient offer of proof to show the relevance of any of the items in that account, we cannot say that its exclusion was erroneous.
The requests of the respondents for the allowances of costs and expenses of this appeal are denied. It is only in rare and unusual circumstances, not present here, that such allowances will be made in the matter of contested probate "accounts. See Olney v. Sheppard, 275 Mass. 496, 497, 498.
The decree entered in the court below must be modified by reducing the item of reserve for the tax assessed upon the trust estate for the year 1942 to that sum which is properly chargeable to the income from the trust estate, upon an apportionment of the tax in accordance with what we have said, by charging the accountant with the difference as a balance of income in its hands and by allowing the account as the sixth, but not as the final, account of the accountant. As so modified the decree entered in the Probate Court is affirmed.
So ordered.