Coates v. Lunt

213 Mass. 401 | Mass. | 1913

Sheldon, J.

The fundamental principles to be applied to this case have been settled. Coates v. Lunt, 210 Mass. 314. Only the specific questions raised by the defendants’ exceptions are now before us.

1. The defendants’ first and third requests for rulings rightly were refused. The failure of Mrs. Carter and Mrs. Lunt to procure their formal appointment as trustees by the judge of the Probate Court and to give to him bonds as such trustees did not conclusively show that they had declined to act in that capacity, or that they were not in fact acting as trustees in the matters set out in the bill, under the provisions of Pub. Sts. c. 141, § 18, then in force. Jones v. Atchison, Topeka & Santa Fé Railroad, 150 Mass. 304, 307. Ricketson v. Merrill, 148 Mass. 76, 82. Howe v. Ray, 110 Mass. 298. For any default upon their part in dealing with the trust estate, there would have been a remedy upon their bonds as executors. Miller v. Congdon, 14 Gray, 114, 115. Prior v. Talbot, 10 Cush. 1.

2. The second request was not applicable to the case. There was nothing further to show that they had “declined the trust to which they were nominated,” and the statement in the exceptions that the judge who heard the case “made findings of facts which would entitle the plaintiff to a decree in her favor” sufficiently shows his finding that they had made no such declination. Such an inference by him was justifiable.

3. In equity the share in the real estate described in the bill, of which Mrs. Lunt originally had been entitled to receive the income, had before her death become vested in Mrs. Carter. Mrs. Carter therefore held that share no longer as trustee, but in her own right, and the children of Mrs. Lunt had no interest therein or in the income thereof. In any event, and even if the children of Mrs. Lunt may have had some interest in other parts of the trust property, which we do not decide, no default or misconduct of Mrs. Carter as trustee could affect her right to the property which she individually had purchased, and which had been, though defectively and insufficiently, conveyed to her as an individual by an instrument which she had the right in equity to have reformed and rectified. That individual right of Mrs. Carter is now vested in the plaintiff, and the plaintiff can enforce it just as Mrs. Carter could have done. If Mrs. Carter was guilty of any default in her administration of the original trust, there was an ample remedy therefor. No equitable reason appears for depriving the plaintiff of the property by reason of any such misconduct by Mrs. Carter. It follows that the judge was right in refusing to give the defendants’ fourth and fifth requests.

Exceptions overruled.