62 Vt. 221 | Vt. | 1890
The opinion of the court was delivered by
The exceptions taken, on the trial in the County ■Court, raise the questions :
First. Had the Probate Court 'jurisdiction to remove the defendant from being trustee and to appoint the plaintiff trustee in his stead, under the circumstances in which it was attempted to be done ?
Secondly. If so, can the plaintiff maintain an action of general assumpsit to recover the trust fund on the facts found by the County Court ?
I. By the will of Susan B. Bellows, duly probated, the defendant was made trustee of the fund in controversy, with the provision in the will that he- should not be required to give any bond,hand-giving/him general • discretionary ¡powersuri- regard'td’d the<; ibivestipenP ¡of1 the'if úndl,¡ apti! >also'ithe>! ¡right> to' • ¡appoint) ibjao'x ■■sutecéssorc.’;!iHe'.Hvas-¡exe'clitor'! of.'¡the ¡estáfeoh ¡Th'éí •e'siiat'©’lwas>o settled,!and i h§<jwas >®rd'ered‘ to ■ retain {the' trust Tundin1 'liis > bandsy! t
II. ¥e think the second point raised is equally fatal to the plaintiff’s right to recover in this form of action on the facts found, if the appointment of the plaintiff could be held to be of legal force. By the appointment, he became a legal trustee of the fund, but not entitled to any specific securities nor to any specific amount until the court had first settled the defendant’s-account as such trustee, ascertained what trust funds he had in his hands, and determined the amount, by first deducting therefrom such amount as should be legally allowed for his services in caring for the fund. Under the discretionary power conferred by the will in regard to investments, it does not follow that he was to account for money. It is well settled that a trustee will not be allowed to realize a profit above his reasonable charges for its care, from the use or investment of the fund., nor is he, when acting under a discretionary power, such as is conferred by the will of this testatrix, necessarily to be charged with all losses which may result from his management of the fund. S. 2292 to 2299 all relate to making orders by the Probate Court for the conveyance of the trust estate by a trustee removed, or on his decease, by his legal representatives, to the new trustee, and for the management of the trust estate, and for the settlement of the trustee’s account. While the action of general assumpsit is an equitable action, and is frequently held) to be sustainable when money is shown to be in the hands of the defendant which equitably belongs to the plaintiff, this statement must be taken with some qualification and limitations.
In trusts, arising in the settlement of estates, the Probate Court has full equity powers conferred in the se ctions of the statute cited, and therein the manner of the exercise of these powers is prescribed. From the nature of trusts, and the powers and duties which inhere in the trustee in the management, as well as the provisions of the statute, it is manifest that the trust property should be ascertained with its increase, or diminution, and the account of the trustee should bo settled, and an order made on the outgoing trustee to pass the amount or specific property ascertained to belong to the trust over to his successor before the latter can maintain an action at law for the estate decreed to be passed over to him. If such decree is for the payment of money no doubt this action could then be maintained. There is quite as much necessity for such an order from the Probate Court to maintain this form of' an action against the outgoing trustee, as there is for such an order upon an executor or administrator to pay claims, distributive shares or legacies, to lay the foundation for a like action against the latter. This objection is also fatal to the maintenance of this suit.
The judgment is reversed and judgment rendered for the defendant to recover Ms costs.