337 Mass. 482 | Mass. | 1958
A report by the probate judge under G. L. c. 215, § 13, without decision, brings before us the construction and application of our rescript in this case at an earlier stage. See 334 Mass. 324, 340.
In that decision we held that, notwithstanding an exculpatory clause in the trust instrument, The New England Trust Company, as managing trustee, was under a liability to the trust because it had failed to invest trust funds for an unreasonable time and had retained the uninvested funds in its commercial department, more precisely described, it now appears, as its “banking department.” The funds had been deposited in that department as permitted by G. L. c. 172, § 54A. We said (page 340), “Whether or not the failure to invest would be a 'breach of trust’ apart from the aspect of profit to the trustee, we hold that there is liability here to account for the profits which resulted from such withholding, or alternatively for the fair value of the use of the money . . ..” The language of the opinion (pages 340-342) shows that, as to profits, what we were referring to was the “incidental profit” (page 341) which “resulted from such withholding” (page 340) and from “the use of the subject funds along with . . . [the trust company’s] other commercial deposits” (page 341). The language shows also
The correct rule for determining the percentage of profits with which the trust company is chargeable is the percentage that the net operating earnings after taxes of the banking department of the trust company in each of the years 1948, 1949, 1950 and 1951 is of the deposits in these years. Thus, in accordance with paragraph 4 of the stipulation of the parties, the amount with which the trust company is chargeable under this alternative is $1,637.44 plus interest at six per cent per annum from September 19, 1951.
In view of the stipulated facts that the trust company "on the few occasions during the four years in question, when it found it necessary or advisable to borrow, always borrowed either from the Federal Reserve Bank at its current discount rate, or bought from another bank, at the same or a lower rate, a part of such other bank’s reserve funds at the Federal Reserve Bank which were in excess of the reserve
The case is remanded to the Probate Court for the entry of a final decree in accordance with the earlier rescript and the foregoing construction thereof.
So ordered.