180 Mass. 79 | Mass. | 1901
This is a bill in equity by the cestuis que trust under the will of one Lydia M. Preble to compel an accounting by the executors of one Orrick H. Greenleaf for certain stocks belonging to the trust estate conveyed by one of the trustees to said Greenleaf in payment of his own debt; Greenleaf knowing
The master found amongst other things that the plaintiffs had suffered and permitted the trustee, who was their father, to act with reference to the property in question “ as he desired and to use it as his own property . . . and have acquiesced in and consented to his use of the said stock in the manner in which he used it.” The plaintiffs contended that the finding, that they “ acquiesced in and consented to his use of the said stock in the manner in which he used it,” was a conclusion of law, was repugnant to the findings of fact by the master, and was “ not based on any evidence in the case and was contrary to the evidence.” The judge ruled that the finding was a finding of fact and was warranted by the evidence.
The principal question in the case and the only one that has been argued by the plaintiffs is whether the finding that the plaintiffs consented to and acquiesced in the use of the stocks in the manner in which the trustee used them was warranted. We think that it was. The stocks referred to consisted of stocks in the Holyoke Paper Company, and the National Automatic Weighing Machine Company. The Paper Company stock stood in the name of Lydia M. Preble on the books of the corporation and a certificate was issued to her. Afterwards the stock was pledged by her husband, with her knowledge and consent, to raise money for use by him in his business. The defendants’ testator assisted in procuring the loan thus obtained, and was liable therefor. Subsequent to Mrs. Preble’s death this loan and another for which Mr. Greenleaf was also liable, amounting together to §79,000, were paid and settled by Mr. Preble by the transfer by him to Mr. Greenleaf of the Paper Company stock, and by his giving Mr. Greenleaf his note for the balance, §19,000, secured by the Weighing Machine stock. This last stock was purchased with money derived from the sale
In addition, the master properly could consider the relations between Walter and his father, his opportunities for knowledge, the fact, admitted by him, that he knew that his father was using the funds of the estate, and the long delay in bringing suit after he discovered the wrongful use that had been made of the stocks.
As to the daughters, the other two plaintiffs, there was testimonjr tending to show that one of them had said that they knew of the transfer of the stock and that they consented to anything that their father did and that they were ready to do anything to help their father. The witness who testified to this was not positive that the other sister was present when this was said, but thought that she was. It appeared that the two sisters
The plaintiffs have not contended that the finding was not a finding of fact, as it clearly was.
If the plaintiffs consented to and acquiesced in the use that was made by the trustee of the stocks, it would be unjust to permit them to avoid the transfers on the ground that the property was trust property, and the trustee had exceeded his powers and Mr. Greenleaf had taken the stocks knowing that they were trust property. The plaintiffs were of full age and competent to act and must be presumed to have known what the law was and what their rights were. The case would be no stronger if it should appear that their consent was given after the transfers were made instead of before. Such a consent would be in the nature of a ratification and would have the same effect
It seems to us that the decree was right and should be affirmed.
So ordered.