Sargent v. Wood

196 Mass. 1 | Mass. | 1907

Knowlton, C. J.

The plaintiff, as administrator de bonis non of the estate of David F. Wood, brings this bill to obtain the proceeds of a fund of $20,000, and more, abstracted from the estate by Arthur E. Wood, a former administrator, and turned over to his wife Clara H. Wood ‘without consideration, and by her invested in two mortgages of $10,000 each, which are now held by her against the estate.

The first defence relied on is that the plaintiff should seek his remedy through the account of the former administrator, and by an action on the probate bond. That remedy, however, is not exclusive, and, upon the facts found by the master in this case, it would be inadequate. This suit is not to obtain an account of the settlement of the estate, which should be rendered in the Probate Court as a part of the proceedings under the statutes. It is founded upon a well recognized ground of jurisdiction in equity, that property held under a trust may be followed by those interested as beneficiaries, so long as it can be identified, and may be appropriated by the court to the uses for which it was intended. This defence is without foundation.

The master has found' that more than $20,000 belonging to the estate was taken by Arthur E. Wood, while administrator, and deposited in the name of his wife and held and controlled by her, of which $10,000 was used in paying one of these mortgages which was assigned to her, and $5,000 in partly paying the other mortgage, which was also assigned to her, the remaining $5,000, used to make full payment of the mortgage, having been borrowed by her from her brother. These facts justify and require the relief given to the plaintiff by the final decree, covering the whole of one of the mortgages and all but $5,000 in amount of the other mortgage. Otis v. Otis, 167 Mass. 245, and cases cited. Pennington v. Smith, 69 Fed. Rep. 188. Pom. Eq. Jur. (3d ed.) §§ 1047,1048. Perry, Trusts, (5th ed.) §§ 217, 220.

The only doubtful question in the case is whether the plaintiff is entitled to relief in this suit for the remaining $5,000 of trust funds, abstracted by the former administrator, and received without consideration and appropriated by the other defendant. It is clear that the plaintiff cannot prevail, as to this part of the funds, on the ground that it was used to pay for the mortgage. The female defendant had money to this amount belonging to the estate, and used it otherwise. It was decided in Otis v. Otis, ubi supra, that in a case of this kind the plaintiff has a right to compensation as alternative relief. See also Perry, Trusts, (5th ed.) § 843. Upon the facts found by the master, the plaintiff is entitled to payment of this part of the fund from the defendants, and, under the R. L. c. 159, § 3, inasmuch as the interest of the female defendant in the mortgage cannot be come at to be attached, and as she has no other visible property from which to collect this amount, there is jurisdiction in the court to apply her remaining interest in the mortgage to the satisfaction of this debt. Barry v. Abbot, 100 Mass. 396. Anthracite Ins. Co. v. Sears, 109 Mass. 383. Tucker v. McDonald, 105 Mass. 423. The only doubt in the case arises on the question whether the averments of the bill are broad enough to open to the plaintiff this kind of relief. The bill was brought upon an assumption that the whole amount of $20,000, transferred to the female defendant, was used by her in taking up these mortgages. The fact being otherwise as to $5,000 of the money, the question is whether the plaintiff’s statements in the bill justify the court in appropriating to the satisfaction of this debt her interest in the mortgage, founded on her payment of $5,000 which she procured elsewhere.

While there is some language in the bill which, by a very liberal construction, might be held applicable to a claim for relief of this kind, it seems quite plain that it was not intended to bring the case within the provisions of the R. L. c. 159, § 3, and that the plaintiff’s right to the fund^was intended to be put only upon the ground that the money was used in buying the mortgages. At the same time, looking to the plaintiff’s general purpose, the bill was brought to obtain relief for the wrongful appropriation of the money. The hearing before the master took a broad range, such that the master’s report shows a liability of the female defendant for the money which she used otherwise than by paying the mortgages, and shows also the existence of property of this defendant which cannot bé come at to be attached, and which is now in the control of the court under the process issued in this suit. We see no good reason why the plaintiff should not be permitted to amend his bill in such a way as to claim alternative relief against the husband and wife for this part of the fund, to be enforced against the interest of the female defendant in the mortgage represented by the money that she paid, which was borrowed from her brother.' Unless the bill is amended the decree of the single justice must be affirmed. If within fourteen days after the rescript is received by the clerk, the plaintiff files a motion to amend his bill, and if an amendment is allowed which properly presents a statement and prayer- for additional relief under the statute above referred to, the decree is to be modified by striking out that part which permits the defendant, Clara H. Wood, to hold the mortgage as security for $5,000 and interest thereon from March 23,1896, and for the taxes paid by her, and by inserting a provision applying this interest in the mortgage to the paymenfc of the $5,000 of the moneys of the estate which she formerly held and disposed of, and giving the plaintiff costs against her and her husband.

So ordered.