234 Mass. 374 | Mass. | 1920
This case comes before us on appeal from interlocutory and final decrees overruling exceptions to and confirming the master’s report and allowing the account of Hanscom as trustee.
The only questions raised on this appeal relate to the items for compensation of the trustee and of his attorneys. The controversy primarily does not concern the amounts of these items, but the propriety of allowing them at all. The decision of that question involves an inquiry into the transactions preceding the accountant’s appointment and affecting the nature of his position, duties and relation to the property of which he has had control.
In 1911, Frank E. Chandler, a real estate operator trading in and renting properties of moderate values, was indebted to the Fourth National Bank of Boston, from which he had been a borrower to a greater or less extent for some time. His real estate was under attachment made in 1906 on a suit brought against him by the Malden and Melrose Gas Light Company. Various phases of that litigation are reported in 209 Mass. 354, 211 Mass. 226, and 220 Mass. 1. By deed of August 18, 1911, Chandler executed to Arthur W. Newell, then president of the Fourth National Bank, a deed of all his real estate in Middlesex County (with a single exception), consisting of about ninety parcels, approximately half of which were covered by the attachment, the
After this conveyance and agreement, Chandler continued to deal with the real estate, collecting rents, mating repairs and effecting some sales, Newell executing the necessary papers from time to time and having general supervision of the whole affair. Other lands later were discovered to be owned by Chandler, who conveyed them also to Newell. In April, 1912, Newell was one of the passengers upon the Titanic and was lost at sea with the sinking of that steamship. Chandler continued his real estate business until his death in June, 1913. In the following October the accountant was appointed trustee under the “Memorandum of Agreement,” which then first became a matter of public record by being filed in the Probate Court. This appointment was made by the Probate Court upon petition by Hanscom after citation and with the assent of the bank. The decree was entered under R. L. c. 147, § 5, and after reciting in substance that Arthur W. Newell, trustee under the “Memorandum of Agreement,” “has deceased before the objects thereof are accomplished, that no adequate provision is made therein for supplying the vacancy, that some of the parties interested have requested the appointment of said petitioner,” and other jurisdictional facts, ordered that the “petitioner be appointed as trustee ... in place of said Arthur W. Newell” under the instrument.
Hanscom was then and dining the period here in controversy has remained the assistant cashier of the bank. The case has been re
During the accountant’s administration of the property, a petition was brought in the probate court for instructions upon the point whether proceeds from sales of real estate might be applied to the settlement of indebtedness upon other parcels the equities of which were imperiled by the fact that mortgages were overdue and the mortgagees were pressing for payment. A decree was entered, from which no appeal appears to have been taken, authorizing the trustee to apply proceeds of sales to the payment of taxes, interest and in reduction of mortgage and other incumbrances upon remaining property. The authority conferred by this decree has been exercised. A considerable amount of work was required in the searching of real estate titles. Proceedings were had in the Land Court for the registration of some titles. The trustee also actively participated in the litigation reported in 220 Mass. 1, which was deemed necessary in order to determine whether.the attachment of real estate made by the Malden and Melrose Gas Light Company in 1906 survived the death of Chandler in 1913, or was dissolved thereby. The decision of that question was manifestly of interest to those for whose ultimate benefit the real estate was held.
All these circumstances require the conclusion that the accountant stands in the shoes of a trustee respecting the administration of the estate in his hands and his right to compensation and reimbursement for moneys spent for attorney’s fees and expenses. The
It is not necessary to determine whether the relation created by the original conveyance and memorandum of agreement was a pure trust or was in some of its aspects enforceable in equity as a mortgage and Newell a quasi trustee. See, in this connection, Potter v. Kimball, 186 Mass. 120, 122; Burns v. Hunnewell, 217 Mass. 106, 107; Shillaber v. Robinson, 97 U. S. 68, 77; Hoffman, Burneston & Co. v. Mackall, 5 Ohio St. 124, 131; Rooker v.
The accountant was appointed by decree of a court of competent jurisdiction a trustee under the express provisions of a statute. No appeal was taken from that decree. No objection heretofore has been made to his acting in that capacity. His authority cannot be attacked.collaterally. McCooey v. New York, New Haven, & Hartford Railroad, 182 Mass. 205. Taylor v. Badger, 226 Mass. 258, 262. He has duties in nature those which a trustee should perform. His relation to all the parties was fiduciary in its essential elements. The execution of such duties under the conditions which have arisen was within the purview of the conveyance and memorandum of agreement. The statute expressly provides that a trustee shall have reasonable compensation. R. L. c. 150, § 14. That is a general principle in the administration of trusts. Parker v. Hill, 185 Mass. 14. Among the proper charges of a trustee, which ought to be allowed in his account, are disbursements rightly made in the employment of agents and attorneys. Hayward v. Ellis, 13 Pick. 272, 279. Ensign v. Faxon, 224 Mass. 145, 148.
There is no occasion- to go through the items of these charges one by one. They all appear to have been rendered for the ultimate benefit of those concerned in the Chandler estate. The master and the single justice have approved them all. We agree with that conclusion.
Interlocutory and final decrees affirmed with costs.