302 Mass. 158 | Mass. | 1939
The plaintiff seeks an accounting from his wife and daughter for money entrusted by him to his wife from time to time for the purpose of paying their living expenses and of holding the balance for their mutual advantage, and he alleges that the wife has created a trust for
The money was not given to the wife (hereinafter referred to as the defendant) as a gift, settlement or advancement. Her attempts to conceal from her husband the existence of the bank accounts (into which the contributions from him were fully traced by the master) and to put these accounts beyond his reach, if, when she should repudiate the trust, he should seek an accounting, tend to prove his case. Such conduct could be properly considered by the master as an endeavor to escape liability. Portland Gas Light Co. v. Ruud, 242 Mass. 272. Labrie v. Midwood, 273 Mass. 578. Both had an interest in the fund which could be expended only for their mutual advantage.. It was a trust fund for their joint benefit. Moore v. Mansfield, 248 Mass. 210. O’Brien v. O’Brien, 256 Mass. 308. Cram v. Cram, 262 Mass. 509. Gibbons v. Gibbons, 296 Mass. 89.
The bill was filed about nine months after the defendant refused to recognize the plaintiff’s rights in the fund, and the defendant has failed to show that the plaintiff unreasonably delayed in the enforcement of his rights or that any harm thereby resulted to her. She is unable to support her contention that the plaintiff was guilty of laches. Safford v. Lowell, 255 Mass. 220, 226. North Easton Co-operative Bank v. MacLean, 300 Mass. 285, 294.
The plaintiff contends that the master ought to have found that there was a larger amount due him and that the defendant repudiated the trust in January, 1932. Both were questions of fact. Davis v. Coburn, 128 Mass. 377. Stuck v. Schumm, 290 Mass. 159. There is nothing in the
The final decree provides for the payment of the taxable costs “to the plaintiff or his attorney.” While the payment of costs in equity is discretionary, G. L. (Ter. Ed.) c. 261, § 13, we discover nothing in the record warranting their payment directly to counsel. Dwyer v. Ells, 208 Mass. 195. Boynton v. Tarbell, 272 Mass. 142. The words “or his attorney” are to be struck out. As so modified the decree is affirmed with costs.
Ordered accordingly.