320 Mass. 482 | Mass. | 1940
This is an appeal from a decree of the Probate Court allowing the first thirty-five accounts of the trustee under the will of James A. Woolson. The first six accounts covered the period from May 4, 1904, when the administration of the trust began, to May 16, 1910, and the seventh to thirty-fifth accounts extended from the last mentioned date to July 8, 1939.
The case was again heard in the Probate Court upon the evidence which had been introduced at the first hearing, together with the transcript of the testimony given by one of the trustee’s witnesses before the auditor. The judge entered a decree allowing all of the thirty-five accounts of the trustee, and also filed a report of the material facts. From this report it appears that the auditor had considered the first six accounts, although the reference to him was limited to the seventh to thirty-fifth accounts, and that the parties had implicitly accepted his findings relative to these
The respondents now contend that the trustee should be held responsible for this overinvestment of $23,941.25, and that the trustee should not have retained all these railroad stocks (with the exception of two small lots which they sold) throughout the entire accounting period and should reimburse the trust estate for the loss which resulted therefrom.
These same contentions with others were urged by the respondents when the case was here before. The testator’s
We are not sure that the respondents contend that the trustee. should be held liable for the retention of these stocks during the accounting period covered by the first six accounts, and so we briefly consider the matter. The auditor set put at great length the physical assets, the natural and industrial advantages and prospects and the financial set up of each of the railroads whose stocks were in-
The finding of the auditor that there was an overinvestment totaling $23,941.25 in the stock of the Boston and Maine Railroad system must stand, and there was no error in the judge’s adopting as he did this finding. It is to be noted that $22,590 of this total resulted from purchases made in 1904 and 1905. The circumstances attending the making of these investments must be considered in determining the liability of the trustee, since this overinvestment alone does not necessarily impose a duty to make good the loss upon a trustee protected by a broad exculpatory clause like the one in the instant case. These railroads in 1904 and 1905 were conservatively capitalized and were subject to reasonable public regulation. They were suitably located both as to connecting Unes and as to the districts in which business was available. They had regularly paid dividends for several years and could reasonably be expected to continue to do so. Their stocks at that time enjoyed a favorable tax advantage. These stocks were readily marketable and were in good demand by trustees. Doubtless, these shares Were proper investments for trust funds. A purchase somewhat in excess of the amount that should be invested by a trustee carries with it far different implications as to the diligence, judgment and good faith of the trustee from an investment of the same amount in a comparatively unknown
This is not a proper case for an award of costs and expenses against a trustee who has been exonerated. Nor should an award be ordered out of the trust funds for the reasons mentioned in the former opinion.
' Decree affirmed.