309 Mass. 44 | Mass. | 1941
This is an appeal, by the executors of the will of Charles B. Rock, from a decree of the Probate Court allowing the first account of Charles B. Rock, as administrator of the estate of his father, Frank S. Rock, from the date of his appointment, March 24, 1932, to December 31, 1939, after amending the account by charging the accountants with two hundred twenty shares of the Rock and Hayes. Real Estate Trust together with the income therefrom received by the administrator, and disallowing payments contained in item 21 made to holders of notes which were alleged to have been indorsed by the intestate. Charles E. Rock died January 14, 1940, and the account was made by the executors of his will.
Frank S. Rock died February 4, 1932. The principal asset of his estate consisted of these shares in the real estate trust. Rock’s shares were represented by six certificates which were in a form similar to certificates for corporation shares with written assignment forms on the backs of them. The assignment form on each certificate was signed by Rock on September 29, 1919, and his signature was witnessed .by one bank official and guaranteed by another bank official. Upon the back of one of the certificates appears the following legend: "These 220 shares of Rock & Hayes Real Estate Trust belong to Charles E. Rock Frank S. Rock.”
The father wrote several letters to Charles in reference to these shares. On December 28, 1920, he wrote: "I will sign over all the Rock & Hayes stock to you trusting you to divide it among the others when I am over the river.” He suggested that the major portion of the shares was for Charles himself, but the exact number of shares that Charles should have was for Charles to determine. He stated in a letter dated December 22, 1920, that the payment of the balance due from him to Charles "will be settled by giving him shares” of the trust. Later in the letter he stated that he had given to Charles all his interest in the shares in payment for money which Charles had advanced to him. On August 25, 1921, he wrote Charles that he intended to pledge the shares for a new note in substitution of a note of Charles secured by Gillette stock and one of the father’s
There was no error in finding that there was no gift of the shares. A gift requires proof of an actual or symbolic delivery of the shares coupled with a present donative intent. Herrick v. Dennett, 203 Mass. 17. Robinson v. Pero, 272 Mass. 482. Harding v. Studley, 290 Mass. 310. Sullivan v. Hudgins, 303 Mass. 442. There was no manual delivery of the shares. They were always in the custody and possession of the father, except when they were pledged as collateral with the bank, and the father at no time during his life relinquished control of them. He dealt with the shares in all respects as though he was the sole owner. He received all the income. When the letters were written the shares were kept in a deposit box, a key to which Charles had. Later the father hired another box in the name of his son, and while he may have put the shares in this box, there was no evidence that the son knew that the father had acquired this box or that the son had a key to it. Indeed, there is testimony that the father was not willing to give him a key. Subsequently, the father expressed the intention that if he predeceased his wife, then she should have the income of the shares for her support. His letters to his son clearly show that the possession of the shares was not to be given to him until the death of the father, and that the latter, when writing concerning the location of the shares, was simply notifying his son where he could find the stock in the event of the
The father was not holding the shares as a trustee for his son. He could by an oral or written declaration constitute himself a trustee for the son if he so intended and the son had notice and accepted the beneficial interest. Delivery of the property or of a document declaring the trust is not essential where the settlor makes himself the trustee of personalty. There must be an intent to establish a present trust and create an equitable interest in the beneficiary.
There is nothing that would establish a trust in the letters or in the writing on the back of one of the certificates when considered with all the testimony. There was no completed gift, as we have said, and an imperfect gift does not constitute a trust. Cardoza v. Leveroni, 233 Mass. 310. Mulloy v. Charlestown Five Cents Savings Bank, 285 Mass. 101. A willingness by the father to take appropriate action in the future to establish a trust is of no more effect in case of a trust than it would be in case of a gift if he intended to take the necessary action to complete a gift. Welch v. Henshaw, 170 Mass. 409. Cleveland v. Hampden Savings Bank, 182 Mass. 110. Robertson v. Parker, 287 Mass. 351. H. W. Hogarth-Swann v. Steele, 294 Mass. 396.
There was no delivery of the shares to Charles, and the latter could not be considered as a trustee for the benefit of himself and his brothers and sisters. Loring v. Hildreth, 170 Mass. 328. Johnson v. Johnson, 300 Mass. 24. Scott on Trusts, § 32.2.
The shares were not included in the inventory of the father’s estate. Charles contended that the shares were
As Charles never took any present interest in the share's during the life time of his father, the contention now urged by the appellants that he had a joint tenancy in the shares is not tenable. A statement in one of the father’s letters that he would enjoy feeling that the shares are “in our charge to the end” cannot outweigh the probative effect of the testimony to the contrary, to which reference has already been made.
Charles did not treat the shares as assets of his father’s estate. He was not entitled to take the shares in payment of an alleged debt due him from his father or on account of payments made by him to creditors of the estate. The nature of the alleged indebtedness of his father we have already discussed, and the appellants do not show that Charles had any right to apply the shares in satisfaction of his claim. See Prentice v. Dehon, 10 Allen, 353. Green v. Russell, 132 Mass. 536. Buckley v. Buckley, 157 Mass. 536. There would be no necessity for Charles to advance money to pay the creditors of the estate if the shares were included in its assets.
The appellees were not barred by loches from contesting the account and claiming that the shares were the property of the estate. Charles never filed any account during the more than seven years he was administrator. It was his duty to file an account. G. L. (Ter. Ed.) c. 206, § 1. Fletcher v. Fletcher, 191 Mass. 211. Fay v. Fay, 299 Mass. 608. Charles first contended that he owned the shares, but he later contended he was holding them as trustee for himself and his brothers and sisters. One of the appellees never received any income from the shares, as did some of her brothers and her sister, and the widow, who had received a few hundred dollars, did not know that it came from the
Item 21 of the account consisted of payments made on two notes which were described as having been indorsed by the -intestate. One of these notes was not so indorsed and the accountants concede that they were not entitled to be credited with its payment. The other note, indorsed by the intestate, became due April 22, 1932. It was not shown to have been a liability of the estate when it was paid in November, 1936, more than four years after the administrator had given bond for the performance of his duties. G. L. (Ter. Ed.) c. 197, § 9. Rosenblatt v. Foley, 252 Mass. 188. Nochemson v. Aronson, 279 Mass. 278. Consequently, there was no error in disallowing the entire item as it appeared on the face of the account.
• During the hearing in the Probate Court counsel for the accountants stated that he had learned since the account was filed that the intestate was an indorser upon a note of John C. Rock which was due July 19, 1932, and which was eventually paid out of the account of Charles E. Rock at a Marlborough bank, but that it was not listed in the account. When the judge inquired why he should be concerned with a matter “outside of this account which is now before me,” counsel replied “all right” and proceeded to discuss another matter. This note was subsequently referred to in the testimony but the references were no more than a mention of the note. The note was not produced at the hearing and the evidence did not establish when or by whom it was ultimately paid. We think it cannot be said that the'judge and opposing counsel were wrong if
The appellants filed in this court a motion to discharge the appeal, for the purpose of permitting the Probate Court to pass upon a motion to reopen the hearing for the introduction of newly discovered evidence. This evidence consists of two checks of Charles payable to his father, dated November 29,1930, and June 13, 1931, for $3,000 and $1,100, respectively, and a deposit slip showing a deposit of $3,000 made by his father in the Marlborough bank on November 25, 1931, which came from a check drawn on a New York bank. The affidavits accompanying the motion do not show the purpose for which the checks were issued or that the amount of the deposit came from funds furnished by Charles. The two checks and the deposit slip standing alone or considered with the evidence already introduced do not seem of such force and effect that if they were admitted in evidence a different decision would have been reached by that court. It could hardly be expected that the Probate Court, in the exercise of sound judicial discretion, would allow the motion to reopen, which has no standing as a matter of substantive right. Clark v. McNeil, 246 Mass. 250. Union Trust Co. of Springfield v. Magenis, 266 Mass. 363. Union Trust Co. of Springfield v. Kittredge, 298 Mass. 515.
Motion denied.
Decree affirmed.
