134 Mass. 441 | Mass. | 1883
We can have no doubt, that the finding of the court, that the shares of stock transferred by direction of Mrs. Higgins to Perkins, in 1870, were held by him in trust for her, was fully sustained by the evidence. This finding we do not understand to be seriously questioned by the plaintiff.
The chief question in the case is whether the shares of stock which stood in the name of Mussey, and were in his possession at the time the bill in this case was brought, were impressed with the same trust in favor of Mrs. Higgins as those originally transferred by her to Perkins. Perkins having wrongfully disposed of the stocks, it was his duty to replace them, and if his breach of trust had been discovered, a court of equity, at the election of the cestui que trust, would have required him to replace them. Ex parte Shakeshaft, 3 Bro. Ch. 197. O'Brien v. O'Brien, 1 Molloy, 533. Oliver v. Piatt, 3 How. 333, 401. Perry on Trusts, § 844. It is true that Mrs. Higgins would not be obliged to accept the substituted stocks, and might have required Perkins to pay her the proceeds of the stocks sold, but if she chose to accept the stocks, no one can object. One share of stock was just as good as any other share; the certificates were not shares, but only the evidence of the ownership of shares, and a certificate of any number of shares had the same value as any other certificate of the same number of shares in the same corporation.
The report finds that Perkins had from time to time, prior to December 15, 1879, acquired, by purchase or otherwise, and then held, standing in his name, as the original shares had stood, the exact number of shares in each of the corporations, then belonging to Mrs. Higgins, and that he then held no other shares in any of these corporations, and that he had acquired these shares for the purpose of guarding the trust, intending to set them aside and use them as the trust fund.
The plaintiff contends, that although the purpose of Perkins was as found by the court, yet that this is not sufficient; that
In Brabrook v. Boston Five Cents Savings Bank, 104 Mass. 228, Mr. Justice Wells says: “So if there be an actual trust, and an obligation to make the transfer for the security of that trust, the continued possession of the instrument by the person who executed it, being also its proper custodian for the cestui que trust, is consistent with an assignment completed by delivery; and a legal delivery to pass the title will be inferred from very slight evidence.”
In Chace v. Chapin, 130 Mass. 128, Mr. Justice Colt says: “It is enough if the party supposed to be trustee unequivocally declares in writing, or orally if the property be personal, that he holds it upon a well-defined trust. When the trust is thus created, it is effectual to transfer the beneficial interest.”
We can have no doubt that the judge was entirely supported by the facts found, and the evidence reported, in his conclusion, that the stocks acquired by Perkins, with the intent to constitute them the trust fund, were, by his so holding them, and the delivery of the list, and the declaration to Mrs. Higgins that he held these stocks for her, impressed with the same trust, in her favor, as those originally transferred to him for her benefit. The transfer of the shares to Mussey, though it might not under the circumstances have much significance as creating a trust, was entirely consistent with the trust, and with a design effectually to distinguish the trust property.
It is urged, that, as after December 1879 Perkins transferred for his own purposes the stock in one of the corporations, and did not acquire the same number of shares in that corporation for eleven days, the newly acquired shares were not impressed with the trust. But we are of opinion that the acquisition of the same number of shares, and placing them with the other
