Monk v. EverettMonk v. Everett
- Reporters:
- , , ,
- Before:
- Wait
This is аn appeal from a decree of the Probate Court dismissing a petition to vacate a decree dated *67February 18, 1930, which appointed John Everett as trustee under the will of Earl Gannett. It raises the question whether upon the facts disclosed notice to parties interested under the will was essential to the validity of the appointment. It is conceded that the appointment was made without prior notice to parties interested of the pendency of the petition for appointment. There is no report of the evidence given at the hearing. The material facts must be gаthered from the report of material facts made by the presiding judge pursuant to
In April, 1917, one of the fifteen donees, Loring M. Monk, filed a petition alleging that Earl Gаnnett gave “certain estate in trust for the use and benefit of his widow, Mary J. Gannett, as set forth in said will and appointed John Everett trustee thereof; that said Evеrett has declined and neglected to accept said trust and that your petitioner is willing to accept said trust,” and praying that he be appointed “trustee as aforesaid.” It does not appear that Everett had notice of this petition, which was assented to by nine persons, some of whom were of the fifteen donees. On this petition the court made the appointment. The decree recited: “It appearing by said will that said testator gave certain estate therein described in trust for the use and benefit of Mary J. Gannett and that John Everett was named therein as trustee, and has deсlined said trust and no party objecting thereto.” Nothing appears to show that Mary J. Gannett then had any interest in the property, although, years before, she had disclaimed any rights under the will and had been decreed her dower interest. Monk resigned the trust February 16, 1929, and his resignation was accepted by the cоurt. At the moment of the appointment, accounts of Everett as executor were upon the files of the court undisposed of. *69Monk filed his first acсount on July 5, 1928. No docket entry shows a disposition of it. ,. , ■
Everett’s petition, dated February 3, 1930, Aset out the allowance of the will, the giving of estate in trust for the fifteen donees named, his appointment as trustee by the will and his willingness to accept the trust and to give bond, it prayed appointment and exemption from surety on the bond pursuant to the request of the will. The decree recited: “It appearing by said will that testator gave certain estate therein dеscribed in trust for the use and benefit of Benjamin Gannett and others, and that the petitioner was named therein as trustee, and that said testator in and by said will requested that said petitioner be exempt from giving a surety on his bond as such trustee.” It appointed Everett “trustee as aforesaid.” This petition was silent in regаrd to the provision for the widow.
In such a state of affairs the judge could find, as we think he did, that the record does not show a vacancy in the trust under the third clause of the will due to the declination, resignation or removal of Everett. The appointment of Monk based on the alleged declination and neglect of Everett, inexplicable as it is on the evidence which is before us, relates to the trust for the widow. It is immaterial here where the trust under the third clause of the will is in question — a trust in which the widow has no interest. There is nothing to show any declination of Everett to act under it. In the orderly course of administration, Everett might properly delay to qualify as trustee until his accounts as executor were finally settled. See Kirwin v. Attorney General, 275 Mass. 34, 40, 41. The law is settled that it is “the general rule that an еxecutor who is also a trustee under a will cannot be considered as acting under the power given by the trust until he has settled his account as exeсutor in the Probate Court.” ” Mooers v. Greene, 274 Mass. 243, 252, and cases there cited, in especial Crocker v. Dillon, 133 Mass. 91, 98. Undoubtedly delay in’ giving bond as trustee may be so prolonged as to justify an inference of decimation,
Unless the trust created by the will became vacant, the Probate Court had no authority to appoint a trustee. Lowell, appellant, 22 Pick. 215. Newcomb v. Williams, 9 Met. 525. Shaw v. Paine, 12 Allen, 293. Howe v. Ray, 110 Mass. 298. Parker v. Sears, 117 Mass. 513. Coates v. Lunt, 213 Mass. 401. Everett was appointed by the will to the trust it created, and was exempted, by request of the testator, from giving surety on any bond required. No notice or citation from a probate court was essential to the validity оf the letters granted to him as trustee or to the approval of his bond (
It well may be that Everett ought not to bе continued in position as trustee. The judge left that question open; for the decree denying the petition to vacate was in terms made “without prеjudice to the right [of the petitioner] to file a petition for the removal of” said Everett.
It follows that the judge of the Probate Court was right in refusing t‘a grant the petition to vacate based on lack of jurisdiction because of failure to give notice of the application for appointment as trustee.
Decree affirmed.