256 Mass. 78 | Mass. | 1926
This is an appeal from decrees allowing two accounts of the petitioners, as trustees under the will of C. James Connelly, by which two trusts were established: one, by the gift of $10,000 to the trustees to pay the net income to the testator’s sister Annie E. Buckley during her life, and, at her decease, to pay $1,000 of the principal to her daughter Catherine A. McAleer, wife of John McAleer, and to divide the balance among all of Mrs. Buckley’s children including Catherine A. McAleer; the other, by the gift to the trustees of the rest and residue of the testator’s property, to pay the net income thereof to the testator’s widow during her life, or while she remained unmarried, and with the direction that upon her death or remarriage the residue should be divided between the testator’s sister Mary E. Connelly and the children of his sister Annie E. Buckley.
The petitioners were appointed executors July 30, 1914, and on September 1, 1914, received their appointments as trustees. In April, 1923, they filed their first account as trustees for the benefit of Annie E. Buckley and others, for the period beginning July 10, 1914, the date of the testator’s death, and ending April 10, 1923; and their first account as trustees for the benefit of Agnes G. Connelly and others, for the period beginning August 1, 1916, and ending April 1, 1923. The appeal from the decrees allowing these accounts was taken by Annie E. Buckley, and by Catherine A. McAleer who is one of the residuary beneficiaries. On July 17, 1923, the appellants requested the court to report the evidence on which the findings and the allowance of the accounts were based, and to report the facts. The latter request was complied with, but the court did not report the evidence. Before the hearing no request was made for the appointment of a commissioner to take the evidence.
The provisions of G. L. c. 215, § 13, giving a judge of probate the right to reserve and report evidence and all questions of law thereon to the full court, relate only to the discretionary power of the court. No right is given upon
“An executor who is also trustee under a will cannot be considered as holding any part of the assets in the latter capacity until he has settled an account in the Probate Court as executor, in which he is credited as executor with the amount which he holds as trustee; and such account should not be allowed by the judge of probate, without first requiring him to give bond for the faithful performance of his duties as trustee.” Crocker v. Dillon, 133 Mass. 91, 98. An allowance of the executors’ account under such circumstances would discharge him as executor and vest the trust fund in him as trustee, and after the trust is thus established, the sureties on the trustee’s bond are held. Eliott v. Sparrell, 114 Mass. 404. Sheffield v. Parker, 158 Mass. 330, 333. Brigham v. Morgan, 185 Mass. 27, 41. Welch v. Boston, 211 Mass. 178.
The executors’ first and final account, filed November 21, 1916, was allowed December 12, 1916. In this account they charged themselves with cash paid James F. Creed and Joseph J. Lannin, trustees for Annie Buckley, $10,000, and also with personal property passed to themselves as trustees, $142,995.75. The inventory of said trustees for the benefit of Annie E. Buckley and others, filed October 16, 1916, consists of one item in this form: “Cash interest in estate of C. J. Connelly $10,000.” Their inventory for the benefit of Agnes G. Connelly and others, filed on the same date, is thus summarized: “Various certificates of shares of stock and household furniture, pictures and other personal property from James F. Creed and Joseph J. Lannin, executors of the will of C. James Connelly . . . approximating in value
The trial judge foünd, in substance, that the $10,000 trust for the benefit of Annie E. Buckley for life was not segregated as a separate fund, but that the trustees had administered the estate, including both trusts, as an entirety, charging the total amount of principal with $10,000 as belonging to the Buckley trust, and paying to Mrs. Buckley from the income of the combined estates six per cent net on $10,000 per year. It appears from the account that less than that rate of interest was paid for the first two years after the testator’s death. It is the duty of trustees holding two distinct trust funds to segregate them. They cannot ordinarily be invested together and the net income prorated to the beneficiaries. It is only by keeping them separate that the losses and charges can be allocated properly. Moore v. McKenzie, 112 Maine, 356. The judge found that the object of keeping the funds together was to provide Mrs. Buckley, the life tenant, with a larger amount of income than could otherwise be paid to her; and that this arrangement was accepted by her, understanding her rights, and was known to and approved by Mrs. Connelly, the testator’s widow, they being the sole beneficiaries entitled to income under the two trusts. They could consent to a division of income on a different basis from that required by the will, and they both assented to the trustees’ accounts. A beneficiary who has consented to a breach of trust cannot thereafter complain of such breach. Pope v. Farnsworth, 146 Mass. 339, 344. Preble v. Greenleaf, 180 Mass. 79. Richards v. Keyes, 195 Mass. 184.
Mrs. McAleer did not consent to the arrangement, but it does not appear from the findings that her interests have been jeopardized or injured by the failure to separate the trusts,
If, however, it appears that the principal is being impaired either by treating as income what should be principal, or by the making of unjust charges against principal, or in any other way, the residuary legatees are entitled to have their rights protected. The general duty of trustees in making investments is, that they shall act in good faith and in the exercise of a sound discretion. Lovell v. Minot, 20 Pick. 116. Dickinson, appellant, 152 Mass. 184, 186. So far as is reasonably practicable, they are to hold the balance even between the claims of life tenants and those of remaindermen. Dickinson, appellant, supra. “ . . . it has never been held that trustees for successive takers were at liberty to disregard the security of the capital, in order to increase the income. Nor, where property is of a wasting nature, is an investment in it consistent with their duty, in the absence of specific directions in the creation of the trust. They are equally bound to preserve the capital of the fund for the benefit of the remainderman, and to secure the usual rate of income upon safe investments for the tenant for life; and to use a sound discretion in reference to each of these objects. If there is no specific direction, and they are charged merely with the general duty to invest, they cannot postpone the yielding óf income for the increase of the capital, nor select a wasting or hazardous investment for the sake of greater present profit.
In the absence of facts showing that dividends on stock were a part of the capital of the corporation, or that the payment of them essentially impaired or diminished the value of the shares, they are to be regarded as part of the income to which the cestui que trust for life are entitled. Balch v. Hallet, 10 Gray, 402. Talbot v. Milliken, 221 Mass. 367. It does not appear from the findings of the court that the dividends received on mining stock were not properly considered income for the life tenant. Nor does it appear from the record that the judge was in error when he allowed as income items of drafts for fire loss, telephone warrants, and deposits on "sale of real estate. The decree of the Probate Court establishes the accuracy of the items in the account, and that decision must be controlling unless upon the accounts themselves and the findings of fact the conclusion as to these items appears to be erroneous. It was for the judge of probate to decide whether the income from rents should be allowed as an item for net rents, or whether he would require the more usual form of accounting by the entry of gross rents on one side and expenses connected therewith on the other; and the same is true of the allowance of the item for bill due the estate for stocks; and it cannot be said as matter of law that the allowance of the item last referred to as income was wrong.
The difference between approximate inventory value, above mentioned, and the personal property turned over to the trustees, according to the executors’ account, was $7,004.25. In the trustees’ account this amount is entered as a charge against principal, under the item “Lossin
The case is remanded to the Probate Court for further hearing to correct errors in computation, and for such amendments in the schedules as are thereby made necessary. All questions argued have been considered and no other errors requiring a revision of the accounts appear. When changes therein not inconsistent with this opinion are made, decrees allowing the accounts as amended are to be entered.
Ordered accordingly.