57 A.2d 417 | N.H. | 1948
Lead Opinion
It is elementary that the purpose of an account is to determine with what the accountant should be charged. In Buber v. Buber,
The Trial Court based its verdict for the defendant upon the following ruling, which was duly excepted to by the plaintiff: "The claim of the plaintiff that the decree of the Judge of Probate sounds in money is untenable. The Judge of Probate decreed that there was in the hands of the accountant securities and cash as appears in the annexed schedule of said account amounting to Ten Thousand Six Hundred and Twenty-five Dollars and sixty-seven cents ($10,625.67). These securities as listed in this account were turned over to and receipted for by the Successor Trustee."
This ruling was erroneous. If a probate decree is ambiguous and may be construed in a manner that makes it correct or in another that makes it illegal, the former construction is to be preferred. Unless the creator of a trust provides otherwise, it is the duty of a trustee to invest the funds in accordance with statutory requirements and he is liable for losses due to the depreciation of securities invested in by him that are not so classified. 2 Scott, Trusts, s. 205, p. 1098. An accounting that excuses a trustee from such duty is improper. The form of account in general use in the probate courts of the State outside of Rockingham County calls for a balance stated in money and a decree that charges the trustee with a cash balance. Although the probate decree in the present case is not free from ambiguity because it refers to a schedule that states only the cost prices of the securities, yet it must be understood to mean that the accountant is chargeable with such prices. Otherwise the matter of depreciation for which the trustee may be responsible cannot be considered and the decree on such an account is incorrect. There was nothing in the account to inform the Probate Judge or interested parties that the cost prices were not still the actual market values of the securities.
In other words, the disputed decree is held to sound in money and not in useless figures of inventory or cost values that may be found by resort to other parts of the record of the case. In re Boyer,
Since no defense is shown to the action of debt, the plaintiff is entitled to judgment for the balance of $4,167.36 with interest from the date of the probate decree, if the latter stands.
However two of the investments were legal. If the item of depreciation was not claimed in the account because of a mistake, the *8
Probate Judge may still reopen it and correct the account. "We are of opinion that wherever there has been a manifest mistake in an account settled in the court of probate, it is competent to the judge of probate at any time before a final settlement of the estate, to correct it in a subsequent account, provided there does not appear by the record to have been a particular adjudication upon the subject. Mistakes will sometimes unavoidably occur, and it is just and reasonable that they should be thus corrected." Allen v. Hubbard,
It is not the duty of the successor trustee to contest the account of the defendant as executrix, merely to collect the assets as disclosed by the account. "Except under extraordinary circumstances, no duty would, therefore, devolve upon the present trustee to investigate the conduct of his predecessor." Spooner v. Dunlap,
If the defendant desires to move to reopen her account in the probate court, it would be proper for the present action to be stayed pending the outcome of such motion. A corrected account should be allowed, if at all, as of such date as to make it a proper basis for the present action of debt.
Judgment for the plaintiff, nisi.
DUNCAN, J., did not sit: the others concurred.
ON REHEARING. After the foregoing opinion was filed the defendant moved for a rehearing.
Addendum
The principal criticism of the opinion has been directed to the following sentence: "In other words, the disputed decree is held to sound in money and not in useless figures of inventory or cost values that may be found by resort to other parts of the record of the case. The decree is a judgment for money and not for securities in specie." It is not believed that this sentence imposes upon trustees any new or greater liability than that which has been recognized by trustees generally. In fact it is difficult to perceive the basis for objection to charging a trustee in accordance with the tenor of his own account. The criticisms leveled against the opinion have dealt rather with its supposed implications and the problems of accounting which are thought to be involved.
The requirement that a trustee ordinarily be charged with a balance of values stated in terms of money is an aid in determining the efficiency and the integrity of his administration. It is not intended that he be burdened with a needlessly meticulous disclosure of facts. As a trustee must deliver the res with which he is entrusted, it is not always necessary that he note in his accounts appreciations in value over inventories or previously found balances. Securities fluctuate from time to time. If a trustee can produce values totaling the balance with which he is charged, it may be unimportant that he state in his account the precise value at the time of each security held unless the judge of probate on motion or otherwise so orders. If a lessening of the total of an estate occurs after the decree and before delivery of the trust fund, any danger of a wrongful liability may be obviated by a new account if a release cannot be obtained by informal explanations. Again, delivery may be made before the allowance of the account. Wasteful conversion of the fund into cash ordinarily is neither required nor is it proper administration.
The Legislature of 1947 amended the statutory provisions concerning accounts of trustees. Laws, 1947, c.
Former result affirmed.
DUNCAN J., did not sit: the others concurred.