Leake v. Watson

| Conn. | Feb 7, 1890

Carpenter, J.

Counsel for the respective parties have argued this ease upon distinct and widely different theories; —for the defendants, on the theory that they were merely agents; for the plaintiff, on the theory that the defendants were purchasers or pledgees. Each party, in his chosen position, is strongly intrenched. Grant his premises, and his position is well nigh impregnable; grant the premises of both, were it possible, and a decision of the case would be very difficult. But both cannot be right. The defendants cannot be entitled to the immunities of agents and at the same time liable as purchasers.

Our first inquiry then is, were they purchasers or agents ? So far as they sold the securities as mere agents, in good faith, without knowledge, actual or constructive, that other persons interested in the trust were being prejudiced; in other words, so long as they did not knowingly participate in a breach of the trust, and have fully accounted, they are not liable. In that case they conveyed no title of their own, but only such title as the principal could convey. The principal and the purchasers were the contracting parties. For the purposes of re-investment, and of paying Mrs. Nichols such portions of the principal as she might be entitled to, Mrs. Bulkley as trustee had a right to sell, and the defendants might safely act as her agents for that purpose. If she sold for other purposes, in violation of the trust, with the defendants’ knowledge, even though they may have sold as agents, still we think they are liable.

If Mrs. Bulkley sold the trust estate for the purpose of using the proceeds in stock speculations, or of permitting Mrs. Nichols so to use them, it was a clear breach of trust. If the defendants were the purchasers, knowing the purpose, they participated in the breach of trust. If they were holding stocks or other securities on margins for Mrs. Bulkley or Mrs. Nichols, or both, and received the trust estate as security, and subsequently sold it, using the avails to make good the losses, their liability cannot be questioned.

So long as trust property improperly sold can be traced and identified, the holder taking it with knowledge, it remains trust property. When it is sold pursuant to the terms of the trust, or apparently so, and the purchaser takes it in good faith, he takes it freed from the trust. In this case the finding shows that most of the property passed from the trustee to the defendants as trust property, in gross violation of the trust, with the defendants’ full knowledge. We say with the defendants’ full knowledge, because the defendants, knowing that it was trust property, were put upon inquiry, and the law imputes to them such knowledge as they would have obtained had they made inquiry. The trust, its terms, conditions and limitations, were matters of record. Inquiry, properly directed, would have brought to them full knowledge as to the origin and nature of the trust, and that other parties besides Mrs. Bulkley and Mrs. Nichols were interested in it. They had no moral or equitable right to assume, as they manifestly did, that Mrs. Nichols was the owner of the entire beneficial interest. They knew, or were bound to know, that her interest was only for life; consequently that at her death the trust would cease and that the whole estate would pass into other hands.

That the defendants participated in the breach of trust can admit of no doubt. They knew that Mrs. Bulkley and Mrs. Nichols were using the property in hazardous business —stock speculations; that they themselves were taking the only certain profits, their commissions, while doubtful profits, almost certain losses, and probably complete disaster in the end, were the perquisites of the other party.

It seems very clear to us that the defendants are liable for the trust property, if any, now in their hands, and for the avails of that which they have disposed of, less the amount which appears to have been used for the legitimate purposes of the trust.

We will consider more in detail some of the objections raised by the defendants.

1. They contend that under the circumstances no constructive notice of an unknown and unsuspected trust can be made the basis of an action. Here doubtless they refer to the interest of the remainder-men. The defendants, knowing that the property with which they were dealing was trust propertj', were bound to inquire and ascertain the nature and extent of the trust. Inquiry would have informed them that the same instrument which created the trust in favor of Mrs. Nichols, gave the remainder to her heirs at law. It matters not, so far as the question of notice is concerned, whether the gift over is valid or void. It is enough that there are possible parties who have an interest in the property besides Mrs. Bulkley and Mrs. Nichols. As that fact clearly appears on the face of the will, the trust is neither unknown nor unsuspected.

2. It is insisted that the action of the court of probate in distributing to trustees in trust for Mrs. Nichols is conclusive that she is the sole beneficiary. It is conclusive as to the property constituting the trust estate, but it is not conclusive as to the parties interested in the estate. The distribution is in terms made under the will, which gave Mrs. Nichols only a life estate. A life estate is necessarily followed by a remainder, and the will disposes of the remainder. The court of probate makes no distribution of the remainder.

3. That the equity, if any, of the plaintiff, or any other possible beneficiary, was not only secret, unknown and unsuspected, but was at least so doubtful that no implied or constructive notice can be imputed to the defendants. There is no doubt or uncertainty as to the equities of the reversioners. There may be a question as to who they are, but that is not such a doubt as will justify the application of the rule invoked.

4. It appears that Oliver Bulkley, while he was trustee, sold portions of the various trusts which he held and mingled the avails in one common fund. With a part of this fund he purchased other property, taking the title in himself and Elizabeth Bulkley as trustees for Mrs. Nichols. The defendants claim that they are not liable for any of that property which came into their hands. That cannot be so. Any property purchased by the trustees to take the place of that sold by them is trust estate, so far as the defendants are concerned.

5. It is further contended that the plaintiff is not trustee for the heirs of Mrs. Nichols; that the remainder never was in trust; that the trust was created for the daughters alone, and that the heirs receive a title in fee. But the trust attaches to the property and continues until the property is delivered to the remainder-men. The trustees are chargeable with the duty of safely keeping the property until then. The law undertakes that that duty shall be performed. If a trustee proves unfaithful he is removed, and another appointed, who is clothed with the necessary powers to maintain the integrity of the trust. Therefore the plaintiff’s right to recover does not depend upon Mrs. Nichols’s interest in the property.

6. The last objection we care to consider is, that as no notice was given to the children of Mrs. Nichols of the resignation of Oliver Bulkley, that resignation, and the action of the probate court in accepting the same and in appointing another trustee, are inoperative so far as the trust relates to the heirs; that to that extent Oliver Bulkley is still trustee, and legally responsible; and that the defendants cannot be held responsible until it is demonstrated that he cannot make the fund good.

We do not think that the heirs were beneficiaries in such a sense that notice to them was necessary. The express or principal trust will terminate on the death of Mrs. Nichols. The resulting trust will enable the trustees to hold the property until it can be delivered to the heirs. Strictly speaking, the latter could not and did not exist during the trusteeship of Oliver Bulldej, and cannot come into existence during the lifetime of Mrs. Nichols. It is difficult therefore to see how he could have been regarded as trustee for the heirs. It is doubtless true that if he had been guilty of wasting the trust estate he would be liable, either to his successor or to the heirs; but there can be no justice in holding him liable for the squandering of the estate by his successor.

It is the contention of the defendants that there should be no judgment against them in the present proceeding, even if they applied the proceeds of sales of trust shares upon their account against Mrs. Nichols in her own name, for the reason that these shares were her absolute property; thtit the gifts in remainder by the testator to the heirs of his daughters respectively are void by force of the statute against perpetuities; and that therefore the daughters took the fee in such shares as were put under the several trusts for their benefit.

It is the further contention of the defendants that Mrs. Nichols requested them to sell the trust shares and apply the proceeds for her sole use and benefit, upon their account against her for the purchase of shares upon margins for her profit, and that, so far forth as that may have been done, the corpus of the fund has been paid to and consumed by her; and that, to the extent to which she was such absolute owner because of the invalidity of the remainder-over, the defendants are to be protected by a court of equity against a judgment compelling them to make a payment to the fund which by any possibility should enure solely to her benefit.

These claims upon the part of the defendants virtually call for the judicial interpretation of the will of Charles Bulkley; for a determination of the question as to the validity of the several remainders-over; of the question to what extent, if to any, Mrs. Nichols was the absolute owner of the shares which were for her use and upon her request taken from under the trust.

That these questions may be properly considered and finally determined, it is deemed best to remand this case, reserved for our consideration, for the purpose of giving opportunity to these defendants, if they may choose to avail themselves of it, by bill in the nature of interpleader or cross-bill, to summon into court Mrs. Nichols and the other children of Charles Bulkley, deceased, and the heirs of each of them, and make them parties, so far as they may choose to be heard, and thus obtain a judicial construction of the will in question, to the end that the measure of right in Mrs. Nichols in the shares set apart in trust for her may be determined, and all questions presented by the respective parties may have final determination in one proceeding.

In this opinion the other judges concurred.