251 Mass. 489 | Mass. | 1925
These are five suits in equity in which the plaintiffs seek cancellation of certain releases and of an agreement of settlement, executed and delivered by them to the defendants. The cases were referred to a master who has made the following findings of fact: Elizabeth J. Flynn, a widow, died testate on August 21, 1902, survived by five children, who are the plaintiffs. The defendant Colbert, a brother of the testatrix, on October 14, 1902, was duly appointed guardian of the plaintiffs; and on October 23,1902, the will of Mrs. Flynn was duly proved and allowed in the Probate Court and the defendant Colbert was appointed executor. Colbert, who will hereafter be referred to as the defendant, qualified as such guardian and as executor by giving a bond in each capacity with the defendant Fidelity and Deposit Company of Maryland as surety, which bonds were duly approved by the court.
By her will the testatrix devised all her property in equal shares to the plaintiffs. In November, 1914, the plaintiffs executed and delivered to the defendant releases and an agreement, all under seal, releasing thereby from liability the defendant individually, as guardian, and as executor, and also releasing the other defendants. In order, as the defendant contended, to procure necessary funds to settle with the heirs, he obtained from all of them except Coleman Flynn, who was a minor, deeds of their respective interests in the real estate devised to them; the interest of the minor, by license of the Probate Court granted to the defendant as guardian, was sold and then conveyed to the defendant
It was also found that the defendant did not account to the heirs at any time for $441.85 belonging to the estate and, deposited by him, as executor, in a trust company, which he had forgotten; nor did he account for $106.25 received by him, as guardian, from himself as administrator de bonis non of the estate of one John Colbert. As to these two items the master finds as follows: “I find that* the failure of defendant Colbert to include the $447 [¡$441.85] on deposit in the United States Trust Company was occasioned by his failure to remember said sum at the times of the settlements and was not an intentional act of fraud or concealment upon his part. The evidence leaves me in doubt as to the reason for defendant Colbert’s failure to account for the $106.25 above referred to; but I am not of the opinion that this was intentional fraud or concealment upon his part.” It is stated in the master’s report that no contention was made that the defendant had not fully accounted for the property disclosed by the inventories, at the values therein stated; and also that he made no charge for services as executor or guardian. He employed counsel who acted for him when
The ground on which the plaintiffs seek to have the releases and agreement set aside is that they were induced to execute them by misrepresentation made by the defendant as to the 'value of the estate, and his failure to disclose material facts relative thereto. No intentional fraud is alleged or relied on by the plaintiffs. They contend that, whether the misrepresentation or nondisclosure of the value of the estate was or was not intentional, or was due to a mistake of fact on the part of the defendant, they are entitled to the relief sought. The frame of the bill not being for an accounting, we need not determine for what amount the defendant is liable to the plaintiffs in addition to the amounts already paid them. The question is, whether upon the facts found the plaintiffs are entitled to have the releases set aside on the ground of either mistake or constructive fraud.
It is found, in effect, that the defendant misrepresented the amount due from him as executor and guardian when he failed to include the two sums $441.85 and $106.25, heretofore referred to. The releases were given by the plaintiffs, who relied on the statements of the defendant; they believed that he had made to them full and correct disclosure of all material facts and they made the settlements on the assumption that the accounts stated by the defendant were accurate; if such failure was due to mutual mistake of the parties, as the master found, such mistake is ground for equitable relief. Stuart v. Sears, 119 Mass. 143. Page v. Higgins, 150 Mass. 27. Motherway v. Wall, 168 Mass. 333. Corbett v. Craven, 196 Mass. 319. Long v. Athol, 196 Mass. 497. Reggio v. Warren, 207 Mass. 525, 538.
The plaintiffs also are entitled to relief on the ground that the misrepresentation of the defendant as to the amounts due to them, however innocently made, was constructively fraudulent.
The statute of limitations is not a bar to the maintenance of the bills. The findings show that the plaintiffs acted with diligence as soon as they discovered the falsity of the representation and that the defendant had failed to account for all the estate in his hands.
Laches is not a defence as it does not appear that the plaintiffs had knowledge of the fraud or mistake, or that they had knowledge of facts which would have put them upon inquiry at an earlier date. They seem to have moved within a reasonable time after they learned the facts. Jaynes
In each case the final decree must be affirmed.
So ordered.