Rand v. SmallidgeRand v. Smallidge
- Reporters:
- ,
- Before:
- Soule
The plaintiffs seek to recover in these actions the value of certain notes and bonds which were transferred by the trustee under the will of John A. Fulton, deceased, to the defendant Fulton as belonging to certain persоns, one of whom was the defendant Smallidge, and for all of whom the defendant Fulton was attorney in .fact to reсeive the property, and to whom he has distributed it. The plaintiffs contend that they can maintain their actions on the ground that the transfer was made under *338and in accordance with a decree of the Superior Court оf Connecticut, which, as they say, had no jurisdiction of the subject matter of the suit in which the decree was made, and made the decree in consequence of аn erroneous construction of the will of the testatоr; and that they had no notice of the pendency оf the suit, and are not bound by the decree; and that a true construction of the will shows that they are entitled under it tо the amount of property which was transferred by the trustee. Wo are of opinion, however, that, inasmuch аs the defendant Fulton received the notes and bonds as belonging to those for whom he was acting as attorney to receive them, and has distributed them or their proceeds among those for whom he received them, аnd as the defendant Smallidge received what he has as his own, and not for nor in behalf of the plaintiffs nor either of them, these actions cannot be maintained.
If the Suрerior Court of Connecticut had no jurisdiction of the subject matter of the suit in which the decree was enterеd and in which the transfer to the defendant Fulton was made, the trustee under the will is still liable to be called on by the parties entitled to the estate to account to them; and if there was such a failure to notify the plaintiffs of thе pendency of that suit that they are not bound by the decree, they may still proceed against the trustee with the same effect as if the decree and transfer hаd never been made. In other words, if the trustee has pаid away notes and bonds which were of the estate of the testator under circumstances which would not prоtect him in a suit brought by these plaintiffs to recover their аlleged shares of the estate, he still, in the eye of the law, holds the property in his possession, and must account for it according to the terms of his trust. If the transfer was made under such circumstances as to protect thе trustee against any claim by the plaintiffs, the trust, so far as they are concerned, has been lawfully executed. In either event, the plaintiffs have no right of action аgainst the defendants, because they have not received anything which in equity or good conscience they ought to pay or deliver to these plaintiffs, or any of them. Moore v. Moore, 127 Mass. 22. The rulings in the Superior Court were correct, and there must be
Judgment for the defendants.