277 Mass. 65 | Mass. | 1931
This is an appeal from a decree of the Probate Court dismissing a petition to vacate a decree dated
In April, 1917, one of the fifteen donees, Loring M. Monk, filed a petition alleging that Earl Gannett 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 Everett 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 declined 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 court. At the moment of the appointment, accounts of Everett as executor were upon the files of the court undisposed of.
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 described 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 regard 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 executor 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 executor 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, G. L. c. 205, § 8; but delay, except in peculiar circumstances, cannot be
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 of the letters granted to him as trustee or to the approval of his bond (G. L. c. 205, § 5). Parker v. Sears, 117 Mass. 513. There was no .proof of any vacancy in the trust to which the decree of February 18, 1930, related. The decree appointing Monk on the face of the papers related to a different trust, which, if ever existent, had long before ceased. It did not establish a vacancy in the trust to which his petition related. We need not consider its validity.
It well may be that Everett ought not to be continued in position as trustee. The judge left that question open; for the decree denying the petition to vacate was in terms made "without prejudice 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.