132 Mass. 326 | Mass. | 1882
This case seems to us to be governed by the case of Buttrick v. King, 7 Met. 20. That was an action for money had and received, brought by the administrator de bonis non, with the will annexed, of the estate of John Green, against the administrator of the estate of Lois Green, the widow of John and executrix of his will. The will gave the income and improvement of all the estate of the testator, real and personal, to the said Lois during her widowhood, and the whole estate, after her marriage or death, to his children by a former marriage and their heirs; and authorized her to sell, if she thought it prudent,
In the case at bar, it appeared at the trial that the defendants were the duly appointed executors of the will of Martha Tarr, and, as such executors, came into possession of, and converted into money, certain shares of bank stock which stood in her name at the time of her decease. It appeared further, that this stock was bought by the said Martha with money which was a part of her husband’s estate, to the income of which she was entitled during widowhood, while the principal was given by his will, of which she was the executrix, on her marriage or death, in equal shares, to his and her heirs. According to the decision in the case above quoted from, if the stock had remained in the name of Martha, it might have been necessary for the plaintiff to proceed by bill in equity, in order to show that the specific property, which purported to be the private property of Martha, was in reality property which she held in her representative capacity only, and which ought to be transferred by her representatives to the plaintiff, her successor in the trust. The legal title was however in the defendants as executors. It was by virtue of their power as executors that they had a title to and control over the stock; as such they conveyed title to it; and, as against the plaintiff, they cannot be allowed to contend that they took such proceeds as individuals by unlawful conversion.
As the defendants have caused the stock to be sold and transferred, and the plaintiff is satisfied to receive the proceeds of the sale instead of the stock, and as those proceeds are in money, which the defendants can only claim the right to hold as belonging to the estate of Martha, and as it appears that this is all the trust estate which she held, and that there are no unsettled accounts between her as trustee and the trust estate, and nothing remains to be done but the payment of the money, there seems to be no reason why the plaintiff should not maintain his action.
The result is, that the judge who presided at the trial in the Superior Court erred in ruling that the action could not be maintained. See Arms v. Ashley, 4 Pick. 71. Gould v. Emerson, 99 Mass. 154. New trial granted.