*1 police them into court' or children, bringing making without record.” are that neither ordinance No. nor the cer- 467,
Our conclusions af- the commission Deceulber plaintiff tification of on No. tvhich plainly appointment ordinance places fected no worker mayor, removal of a social ivelfare with the and that ivas ever taken the civil commission lawful aсtion service correctly granted under its court placed jurisdiction. her on the judgment pleadings. affirmed. judgment having a member been
Mr. Peterson, Justice in its con- argued when this case ivas took no submitted, sideration or decision. L. AND v.
LOUISE MALCOLMSON ANOTHER GOODHUE BANK RED WING.1 COUNTY NATIONAL OF 31,068. No.
December 1936.
1 Reported in 272 N. *2 <£ n Gramiis, W. Jensch and Grannis for appellants.
8. Molm Horace W. Mohn, respondent. Thomas for Devaney, Chief Justice. County the Goodhue National Bank by Petition of Red Wing, Minnesota, for the allowance of its final account and a discharge from its duties as trustee. E. January, 1912, Harriett Brooks died leaving a last will and bequeathed certain personal property
testament which trust L. Malcolmson and appellants, Louise Esther Louise She Pope. named in the will as trustee her son Edmund Brooks and provided son-in-law, that in case of his death her Charles E. Sheldon, should him. March, 1919, sucсeed Edmund Brooks died in and on Decem 26, 1919, ber on petition Sheldon, of Charles E. the district court countjr appointing of Goodhue entered order County Goodhue of Wing National Bank Red to act as and said bank acted from until as such trustee that date the time of these proceedings. Objections having duly been filed the beneficiaries, appellants herein, the matter сame on for on 17, 1935. The Afiri! its order in form of fact and court made conclusions final account and allowing part surcharging of law 564= sum of $5,192.52. only in the appeal bank from
respondent allowing part of the final order account and is ground entirely .upon conclusions law are not based findings of fact. by the supported presented: questions
Two within specified by taken the timе appeal law as (1) Was ? proceedings herein time as involved maximum err in not surcharging certain items Did contested (2) final account? of respondent’s filed was on October 1935. Notice of trial court’s order February on appellants upon was served filing notice of is dated Appellants’ April day over six months following,
was served filed. was decision after the with respondent’s not contention that agree appellants’
doWe operation off of Mason is cut Minn. St. right until than 8100-13, days because taken' more Supp. *3 , order. statute have applica- of the court’s This can no entry after involved in this 8100-11 contained appeal case. Section to the tion provides: chapter in the same as of any person appointеd express of trustee
“Upon petition instrument, or of upon petition will or other written any by trust court where- beneficiary trust, county such the district of the of any place business, or his of shall resides has consider in such trustee appointment of the and to confirm trustee application qualify. he shall Thereafter such dis- manner specify of a jurisdiction proceeding have such trust as shall trict court rem.” of as 8100-13 read follows: portions §
The pertinent thus been appointment confirmed, whose has at “Any the court for instructions ad- may petition thereafter time a construction of the of trust or for trust instru- ministration for filing any account, of the settlement or after upon ment, or such filing petition of the court Upon thereof. and allowance and рlace hearing a time for fixing order thereof, make an shall writing by waived the beneficiaries has been hearing unless * * * such the court shall Upon make trust. such which order final shall be appropriate, it deems order as thereby determined, and shall be bind- to all matters as conclusive upon trust interests of all estate bene- upon ing rem to the contingent, except Suprеme or ficiaries, vested within 30 days from such order the entry taken may be Court with the clerk of notice district filing court, by thereof, of such notice to each adverse copy party a who mail has who shall record.” appeared section allows but a reading single
A of the latter mere conclu- thereby afforded is limited to orders of sion—that for provided therein. hearings specifically Moreover, court on to petition trustee be entitled the court for a order that a hearing- express he must its terms have statute, petitioned under first confirmation his appointment pur- and have received Only “trustee appointment 8100-11. whose has suant to thus § 8100-13. petition can under been confirmed” § no petitioned has at the court for confirmation Respondent time nor has trustee; his as either of the two bene appointment petition. being made such There no confirmation ficiaries not within respondent was 8100-13 commencing petition, successfully and cannot maintain proceedings accounting these involved herein wras one hearing- provided said order of the trial It follows that the court on this hearing statute. of this provisions section, covered 30-day limitation therein provided sup itself cannot avail appeal. motion to dismiss the of its port authorized in this case is under the rule of re
The appeal N. W. as 184 Minn. one from a order Rosenfeldt, *4 right 2 Mason special proceeding. See a substantial affecting 9498(7). from such Appeal order must be taken 1927, Minn. St. § days after written nоtice the same from the ad thirty “within 2 Mason St. 9497. In this case § party.” verse was that by appellants of the court’s decision served only notice 566 Such
upon respondent.
notice is obviously not from the “adverse
required
9497 and
party”
as
therefore is not
§
sufficient to start
running
appellants.
the statute
as to
Actual notice does not take
of written notice. The
place
оbligation to give notice rests on
both
and each must
parties,
be served with notice to start
running
him.
statute
as to
Levine v. Barrett & Barrett, Minn.
85 N. W.
Neither can the
be denied upon
ground
it was
taken more than six months after the filing of the court’s decisiоn.
The court’s decision was and could
only
be
an order despite the
fact that there was appended to it a direction for entry of judg-
and under no
ment,
can
circumstances
it be considered as a judg-
ment within
meaning
Mason Minn. St. 1927, 9497, which
provides that the
for appeal
time
is limited to six months after the
entry thereof. See
Rosenfeldt,
re
The trial court found that the respondent, it made although a practice, when purchasing any investment its individual capac ity for its own account, of obtaining and preserving its files thereof, original vouchers showing date of amount purchase, vendor, utterly had failed to obtain vouchers and had no records giving information respecting the purchase of trust assets. The assets so affected involved are designated as the O’Donnell bonds and the Hancock bonds, which total represent a investment of $7,500-. Appellants assign as error the trial court’s surcharge failure to the trustee for this amount on grounds negligence keeping records of and in purchases to make failing proper investigation with respect to these investing. assets before The court held for the trustee as to these items on ground although there negligence was these respects the investments would have been an ordinarily prudent made had there person byt been an investigation at the time of In our purchase. opinion, court erred allowing respondent’s these investments account without source and proof purchase. time
gg/f that a trustee cannot purchasе is well settled or The rule deal own his benefit or on his owmbehalf, either property in the trust 14 Minn. L. Rev. St. indirectly. 308; See Paul or Trust directly 88 N. 256; Minn. Smith v. Strong, Tolversen, Co. v. is also 252 N. W. It established burden the conformed to the standard duty that his actions of his of proving not the beneficiaries. upon the trustee and As stated in falls upon Tolversen Smith v. [190 414]: the is beneficiaries, upon but the burden the upon
“Not to the standard of duty. actions conformed his that his proof of ‘satisfactorily explain.’ to but.his, obligation is the theirs, Not * * * -x-* jf defendant’s accounts are not clear [trustee’s] kept, leaving many trans- accurate; they negligently if ambiguity must come of absence or of which fog actions consequent or transactions, obscurity doubt can- old records of him.” against must resolved advantage, to but be his operate not original to duty requires keep which the trustee A of standard fqnds is investments of trust un- and records of vouchers a trustee’s account invest- To approve one. reasonable to requiring produce the trustee rec- trust funds without ments of purchases conformed making such that his conduct showing ords be destroy of him as trustee would to required to standard from a requiring all to be derived rule any and benefits completely own dealing personal advantage to his to refrain the trustee if What would remain of rule funds. investing trust to as he fit make investments sees permitted is to be being- court Avithout approved investments have such then to or purchase identity date obliged prove to protection benefit and enacted This rule one ? vendor if at familiar all, but usually slightly, -who beneficiaries, trust are de- of the trusts administration with the a definite social as well as obviously serves the rule Thus pendent. lightly regarded. it Moreover, not be and should legal purpose to hardship impose upon be deemed an undue cannot certainly money of another property manage assumes Avho one duty make records of his dealings with assets in his hands for placed safekeeping and hold administration. To require would be to less otherwise dealing one with trust prop- erty ordinarily than a one would demand in dealing himself with his own property.
As said the case of Smith v. N. Robinson, 83 J. *6 A. Eq. 388, 1063, 90 1065:
“In Dufford 46 J. Smith, Eq. v. N. 216, 217, Chancellor McGill said: “ duty ‘It the is trustees to keep accounts and to pre- take and payments they vouchers for serve make. The burthen of proving a in discharge matter their аccounts is them, and obscurities doubts, they which guarded should have against, must be re- against solved them.’ evidence
“Competent payment is ordinarily shown pro- the of vouchers, duction and such or other convincing proof usually to requisite allowance.” a the effect
To same see Villa Site v. Copeland, Co. Eq. 91 N. J. A. L. 111 A. R. 356, and note.
In this case did not obtain permission or apрroval of the court for of the investments made. The pro- trustee duced no records or vouchers to relating purchases. these Appar- ently keep no effort was made to any such records. con- sharp in appears trast it the court’s findings that the respondent bank religiously kept original records and vouchers of all purchases and in investments made it its individual capacity and for its own Significant account. is the fact the that trial court surcharged for the trustee entire amount of one investment also consisting and concerning of bonds the sale of which president had a personal trustee bank financial interest, of which fact the officers and directors of the bank had knowledge. Significant also is the circumstance findings court’s County the Goodhue National Bank, respondent herein, through officers, its directors, stockholders, organized Goodhue County Securities Com- engages generally pany, the securities business; and that company bought latter the Goodhue County Savings Bank, officers, directors, which has the same and stockholders as the bank, securities, including various some O’Donnell bonds. trustee fall fаr establishing The of fact short that the interest individual capacity bank did not have a financial its sale and of the O’Donnell and Hancock bonds. purchase court’s regard being upon burden of proof decision cannot The trans- finding. stand the absence of thereby involving purchase action these bonds becomes Tol- voidable one at the election of the beneficiaries. See Smith v. 423; 252 N. 14 Minn. L. versen, Rev. reject assets,
The beneficiaries herein have elected to both of these every right to conclude that have to do compelled Aveare satisfactorily prove so if on another cannot the absence of financial interest these transactions. other of error are concerned with assets assignmеnts particular mortgages mortgage,
form of three known as the Evertz All of Krogvold mortgage, mortgage. and the Clauson these trustee Aviththe trust estate and were present assets came purchased by sought ‘surcharge respondent it. Appellants *7 for the amount of each of these represented entire investment mortgages The court found as to the first two mortgages. in diligеntly good them and acted faith respondent managed at court found certain mortgage, all times. As to the Clauson amount improper expenditures surcharged and the trustee for the thereby. can see no we can represented ground We the court’s decision. There is no record before us. disturb fact question presented support whether the only findings is they cleаrly do. conclusions of law. As to these assets in of certain costs, also claim error the allowance Appellants attor- fees to the and its fees, attorneys’ trustee’s and fees necessary and the expenditures The court has found the neys. us, ground before we can find no With no record reasonable. HoAvever, with refer- regard. court’s decision this disturbing the no allowance for ex- bonds, and Hancock ence to the O’Donnell satisfactory can make unless penditures showing performed that it its duties as trustee with thereto respect with accordance the views expressed. hereinbefore . We conclude that the court’s must order be reversed and the \ matter remanded for a new only question allowing trial on the and approving respondent’s account desig- the investments nated as the O’Donnell and Hancock bonds.
So ordered. been a having member of the court
Mr. Justice Peterson, when this case was argued took no in its con- submitted, sideration or decision. Opinion Appeal
On Motion to Amend and On from Taxation
of Costs. On February 13, 1937, the following opinions were filed: Per Curiam.
Motion by appellants for an amendment to the directions in the opinion decision of this court filed the above on Decem- case ber 31, 1936.
The decision proceeded theory the above entitled case on the that' escape order of the amount of the surcharge purchase price certain designated assets as the O’Donnell Hancock bonds, must produce prior vouchers or records to prove the source and time of the рurchase thereof. the trial court motion as pertinent to this ' n
follows: “XLII That (e) any the Goodhue National Bank County has not vouchers representing expenditure this the amount of Five Thou- sand and ($5,000) any Dollars nor has record to indicate no/100 from whom the purchased.” bonds were any
“XLIII That (c) County the Goodhue National Bank has not vouchers of Two Thou- representing exрenditure the amount in- ($2,500) sand Five Hundred and nor has record to no/100 dicate from whom bonds purchased.” *8 quoted
From it clear the trustee bank has findings the that neither- nor other of records to indicate type vouchers refer question purchased. the bonds whom Hancock Con- bonds, respectively. bonds the to the O’Donnell entitled to relief asked. are the sequently appellants thаt above filed opinion ordered the the matter It is therefore amended as follows: 31, 1936, be December paragraph words the fourth By striking following out the “if on another the opinion: from the end of the court’s financial in- satisfactorily prove cannot the absence of respondent only: transactions,” that the reads paragraph terest these so rejeсt assets, both of these “The beneficiaries herein have elected to to every right and we to that have compelled conclude do so.” last para- words the next to the following striking out
By satisfactory can make “unless the opinion: of the graph thereto respect its duties as trustee with it shoAving performed that expressed.” views hereinbefore Aviththe in acсordance inserting opinion paragraph By striking court’s order conclude that following: “We thereof the lieu of law conclusions by amending and modified reversed must be increasing expressed by hereinbefore to the víoavs according represent- sum $7,500, principal in the amount surcharge bonds.” and Hancock ed O’Donnell ordered. So
Per Curiam. taxation from the in the аbove action Appeal by clerk made against respondent of costs and disbursements court. supreme fact as to the question by respondent raised There is no of 2 Mason meaning Avithinthe prevailing party are the appellants St. § falls within contends that the case however, Bespondent, 1927, 9482, provides of Mason St. meaning and disburse- or defended trustee costs prosecuted in actions directs unless the court trust estate chargeable shall be ments of mis- because personally charged against them be *9 572 or bad faith. This statute has no This
management application. within or defended the trustee prosecuted is not an action brought Rather it meaning special proceeding of this statute. is a asking discharge, allowance of his account and for by the trustee In Rosenfeldt, and it concluded a final order. See re 687. It is settled that costs taxed may 238 N. W. be court favor of the supreme prevailing party upon from the final order in such re Petition proceedings. 259 N. 826. For these reasons Schaller, 604, 615, against Avefind error in the taxation costs and disbursements no respondent. no rate
There is merit to the claim the charged Moreоver, the record was excessive. there printing charges are no the claim that the made were supporting affidavits not con- charges excessive, excessive. were the Avecould Therefore, taxation of objection sider this as a basis of from the costs N. P. R. Co. 45 Minn. disbursements. Hefferen v. N. 1,W. any respondent’s
Neither is basis for contention that un- there record. con- necessary material Avas contained We do not improper. sider that matters the record Avere With included exhibits, they originally expressly reference the tabular resign the trust. Therefore part respondent’s petition made a be pleadings and Avere matters to became included in record on an from the court’s order proceedings. taxation of costs affirmed.
Clerk’s