Chamberlin v. Estey
55 Vt. 378
Vt.
1883
Check Treatment

The opinion of the court was delivered by

Yeazey, J.

As Dennis Chamberlin had property of his own, consisting of a debt of $800 due from the trustee Otis Chamberlin, and evidenced by a promissory note, he was not entitled under the trust deed to have anything more than the income of the trust property appropriated to his use until his own estate was used up in his support. Therefore, there being sufficient practically in the hands of the trustee Otis to meet all his demands for Dennis’ support and care, Otis is not entitled to have the amount which the master has found he has appropriated for this purpose, in addition to the income of the trust property, made a charge thereon. The trustee entered upon his trust in 1865, and continued therein until the decease of Dennis in October, 1880. During all this time he was owing said note of $800 to Dennis, upon which no payments have' been made. Dennis being, as the master finds, “ considerably deaf, with an intellect so weak and feeble that he was unable to learn to read writing, . . . and entirely incapable and unfit to have charge of his pecuniary affairs,” was non compos mentis, and Otis, his brother, though not appointed, yet acted as his guardian. Dennis being under this disability the Statute of Limitations would not run against him. Sections 7 and 968, R L. But, independent of the exception in the statute as to persons non compos, Otis being the trustee and guardian, and throughout this trust and guardianship owing said note to Dennis, could not have the benefit in this proceeding of the Statute of Lira*383itations. As between trustee and cestui que trust, in the case of an express trust, the Statute of Limitations has no application, and no length of time is a bar. Perry on Trusts, section 863, and cases cited. Although Otis was not trustee of this note, that is, although there was strictly no express trust as to it, yet Otis having assumed to act as Dennis’ guardian generally, he owed a duty to his ward as to this note. Chancery will always exercise great diligence in protecting the interests of wards, and especially when those interests come in conflict with those of the guardian. It would be gross inequity to allow Otis to plead the Statute of Limitations to his note due his non compos ward, in this proceeding, when, during the life of the note, he had a constantly accruing claim in his own favor against the ward.

We think the trustee had the right to come into , a Court of Chancery to render and settle his account. It is peculiarly the province of that court to administer and adjudge in such matters. He had not acted as trustee or guardian by appointment of the Probate Court, and was not before that court as trustee in a regular proceeding to settle his trust account. But having resorted to a court of equity to settle and discharge his trust, he necessarily took with him all the incidents of his relations, individual as well as official, to the trust estate. He invoked the utmost scrutiny of the court to his relation as individual debtor of the ward as yvell as to his acts of administration. He at the same time held three relations to Dennis, that of debtor, of guardian, and of trustee under the deed.

If Otis had known exactly what the annual balance of his appropriations in behalf of Dennis, above the income of the trust property was, it would have been his duty to apply such balance annually on said note. He had the use of the trust property and boarded Dennis in his family, but had no right to fix the value of such use or the price of such board ; therefore, he could not tell what to apply on the note. These values having been determined by the master and the annual balances found, the law will make the application just as parties competent to treat with each other could have made it, and as it would have been the duty of Otis to make it, if he had known the amount, to apply. Both parties *384complain of the decree below as to costs, which were' allowed to neither party. There is no controversy as to the general rule that when a trustee, who has acted honestly and in good faith, comes into court to render his account, he is entitled to his costs and sometimes even his attorney fees. Each party invokes this rule in support of the respective complaints as to the decree in respect to costs. The defendants make no complaint as to the orator’s administration of the trust, but do complain because he sought to make the amount due him, independent of the amount he owed Dennis, a charge upon the trust property and to avoid his own debt, and omitted to give many credits which he could have stated, and thus put the defendants to expense to prove them. We think there was enough of this to warrant the chancellor in denying the orator costs.

The general rules as to costs in cases of this kind are well defined, but it is not often that any one of .them so exactly applies to a particular case as to be controlling. No two cases are alike. The application of the rules must rest in the sound judgment of the court in view of all the facts and circumstances of the case. Trustees differ almost indefinitely in degrees of honesty and capacity. Administrations vary in difficulty to very great extent. An omission or neglect culpable in one case might be excusable in another. Very much wrong conduct by persons in positions of trust is inadvertent, arising from.lack of knowledge of duty or bad advice, or misapprehension of facts.

Looking at this case as a whole and all its features, we are inclined to think that it was a proper one for a division of costs, arid that the decree -of the chancellor should not be disturbed in that respect.

The decree of the Court of Chancery is reversed, and the cause remanded with a mandate pursuant to the foregoing views.