189 Mass. 332 | Mass. | 1905
1. The defendants contend that the statute of limitations is a bar to the recovery of any sum received by Oliver H. Perry more than six years before the bringing of this suit. The total amount which it is contended is thus barred is $9,238.77, including interest. The defendants contend that the relation of Perry to his sister, the plaintiff’s testatrix, was not that of a trustee, but simply that of a single agent for the collection of money and a mere custodian. As to this the master has found that “ he was not a mere custodian, as claimed by the defence, and that he was more than a financial agent, as alleged in the bill; that he was really a trustee, [and] that the statute of limitations did not run in his favor.” This finding should;stand unless upon the facts found and evidence reported it appears to be erroneous.
As to this question of trust, although the master has not reported the evidence verbatim, he states that he has reported it in substance. The report is somewhat voluminous, but the following may be regarded as a brief summary of the facts bearing upon this question.
Oliver, the defendant, Martha, the plaintiff’s testatrix, and Mrs. Moseley were the three surviving children of Augustus B. Perry, who died in November, 1887, leaving his property real and personal, one half to Oliver and one quarter to each of his daughters. Oliver and Mr. Moseley, the husband of one of the daughters, were the executors, and they kept the accounts in the name of A. B. Perry and Company. They managed the real estate, and from time to time made division of the rents and of the principal and income of the personal property. Up to the
On May 12, 1888, Mr. Moseley brought her a check for her first dividend of income and gave it to her. She took it, but said that he might as well “ pay the dividends to Oliver.” Accordingly the subsequent checks for her share were by her instructions drawn to the order of “ Oliver H. Perry, trustee,” and were by him so indorsed and deposited with his own funds in a national bank. On June 12, 1888, Olivei', Martha and Mrs. Moseley received their respective shares of certain railroad bonds, a part of their father’s estate. Mrs. Moseley received hers, but Oliver said to Martha that he would keep hers in his box without charge; she told him to do so, and he put them there together with other bonds which he afterwards bought for her. The coupons from these bonds were deposited like the dividends in his name at the bank. In 1889, a house belonging to the estate of Augustus B. Perry was sold, the purchaser giving a mortgage back for $2,000, which, at the defendant’s suggestion, was taken in Martha’s name as an investment. It is not profitable to recite further details of the collection by Oliver of money belonging to his sister Martha’s estate. The report goes into the matter very fully, and it is sufficient to say that she personally had but little, if anything, to do with the collection or investment of her money or with the care of it.
Owing to the death of both principals there is but little information as to what express contract, if any, was made
We are of opinion that upon the whole evidence the question whether he was the mere custodian of the property of his sister or whether there was an element of trust in the relation between them was a question of fact for the master, and we cannot say that the finding that the relation was one of trust was clearly erroneous, so far as respected the defence of the statute of limitations. See Jones v. McDermott, 114 Mass. 400; Campbell v. Whoriskey, 170 Mass. 63.
2. The defendants further contend that as they have pleaded the statute of limitations as a bar, the plaintiffs were bound either to allege in their bill the facts which avoid it by any exception, or specially reply to it. The defendants contend that the plaintiffs have done neither. The true rule is tersely stated in Piatt v. Vattier, 9 Pet. 405, 416: “ And the doctrine is now clearly established, that if the statute of limitations is relied on as a bar, the plaintiff, if he would avoid it by any exception in the statute, must explicitly allege it in his bill, or specially reply [to] it; or, what is the modern practice, amend his bill, if it contains no suitable allegation to meet the bar.”
While it is true as contended by the defendants that there is no special replication here, we are of opinion that the bill sets
Exceptions to the master’s report overruled; decree for the plaintiffs accordingly.