Schneider v. Hayward

231 Mass. 352 | Mass. | 1918

Hugg, C. J.

This suit in equity is brought by one of three beneficiaries under a deed of trust executed by William E. Hayward, against the trustees, to compel an accounting and a settlement of the trust. It was referred to a master on the original and supplementary bills and answers under a rule which required him to find and report the facts. No evidence was reported. Although exceptions were taken, these were overruled by an interlocutory decree from which no appeal was taken. The case was sent to another master “to state the final account” of the trustees and “to find and report all sums with which” the trustees “are jointly and severally chargeable agreeably to the report” of the former master. The report under this rule stated the account and several exceptions taken by the appealing trustee, but the evidence was not reported. An interlocutory decree was entered overruling these exceptions and confirming the report. From this and from the final decree Clara M. Hayward, the widow of the settlor, who is also one of the three beneficiaries under the deed and one of the trustees, alone appealed.

The findings of fact as stated in the first master’s report must stand except and in so far as modified by subsequent and additional facts found in the second master’s report. No finding of fact in either report is open to revision since no evidence is reported. The only questions open are those raised by exceptions to the second master’s report and those arising on appeal from the final decree. But these latter are confined to the points whether the decree is within the scope of the bill and warranted by the facts found in the two reports. Eddy v. Fogg, 192 Mass. 543. Lyons v. Elston, 211 Mass. 478, 482.

One of the controversies between the parties related to valuable furniture, rugs, draperies, books," works of art and similar articles, which formed a part of the trust. The first master’s report established without qualification that Clara M. Hayward, the appealing trustee, hereafter .called the defendant, had misappropriated and taken out of the Commonwealth at some time between the spring of 1914 and February, 1916, considerable amounts of this property. Comparatively small portions of it remained in a storage warehouse in or near Boston. The second master’s report states that on February 18,1916, after the hearings before the first. master,'certain of these remaining goods were set off to the other twq beneficiaries at stated valuations agreed to by all parties. The first master’s report was filed in June following. There is nothing in the contention that this partial distribution by the defendant to two of the beneficiaries abrogates the findings of fact in the first report or renders it a nullity. This particular matter was simply a taking by two of the beneficiaries of partial payments on account from a delinquent trustee who happened also to be a co-beneficiary under the trust. It has not the slightest effect upon the other findings in that report. They justly form in part the basis for the final decree. The first master’s report did not undertake to state the account of the trustees. That is wholly covered by the second report, where these two items of partial distribution are properly credited and charged. The contention that the acceptance of this partial distribution of furniture and similar property by the other two beneficiaries estops them from requiring the defendant as trustee to account for the large amount of like property misappropriated by her, is without foundation. It is too plain for discussion that a trustee in default must account for the trust estate.

There is no ground whatever for the suggestion that the second master used a different standard, in ascertaining the value of the goods wrongfully taken from the trust by the defendant, from that used in fixing the value of the furniture and like property distributed to the other two beneficiaries. The master had nothing to do with fixing that value, because it was agreed to by all parties in interest. He merely accepted that agreement as he found it. He performed his duty of ascertaining the value of that for which the defendant was accountable.

The master rightly refused in his discretion to permit one of the beneficiaries to be asked on cross-examination how the goods set off to her and the plaintiff compared in value with those received by the defendant. Lawton v. Chase, 108 Mass. 238. This was a collateral matter.

No error is shown in the admission of evidence as to the cost of the goods for which the defendant must account. Cost is often pertinent in ascertaining present value. Wall v. Platt, 169 Mass. 398, 407. There is nothing to indicate that it was too remote in time to be of assistance. Moreover, the defendant had removed the goods from the Commonwealth without justification and thus practically deprived the parties of having them examined by experts or by the master. Obstacles voluntarily created by the defendant greatly complicated the determination of their value. She cannot rightly complain of any evidence disclosed on this record. All the questions argued by the defendant have been considered. Other exceptions require no discussion. There is no error.

Counsel for the other trustee at the argument before this court asked that the decree be modified to the extent of issuing execution in his or their favor for the payment of the amount found due in the master’s report either against the trustees or against a deposit in a trust company. That ought not to be done at this stage against the objection of the beneficiaries. Without enumerating other reasons, it is enough to say that such counsel are not parties to this*proceeding and the case upon this aspect has not been tried.

Decree affirmed, with costs of this appeal to be taxed against Clara M. Hayward personally.