| Mass. | Feb 5, 1883
The money now in the hands of the trustees is held, as the bill alleges, “as security for the payment of said lost bond and coupons,” and was accepted from the receivers to be held by the trustees, as substituted security, upon the same terms as those upon which the trustees held the property previously conveyed to them, as far as applicable, and until such time as such bond or coupons were paid, or the right of any holders thereof, if any there were, was extinguished.
This bond was lost on or about October 13, 1866. Before it was lost, it had been duly executed and prepared ready to be issued, but, it is said, had not been issued. It was for the sum of $5000, payable in five years from July 16, 1866, with interest at the rate of six per cent per annum, payable semiannually, according to the tenor of interest coupons attached. The tenor of the bond nowhere appears in the papers, but it is assumed that it was payable to bearer, and was an instrument negotiable by delivery. As the creditors of the East Boston Ferry Company have all been paid, the money, if received by the plaintiffs, will be distributed among the stockholders of that company.
In 1870, all the bonds actually issued were paid, and the property originally conveyed to the trustees as security for the payment of these bonds was by them conveyed back to the corporation. This was done at the request of the receivers; and,
There is perhaps a greater probability now that the bond and its coupons have ceased to exist, or have never been, in a legal sense, held by any person, than there was nine years ago, but the law raises no presumption from the facts proved.
It is contended in argument that, as this bond was never issued, it is impossible that it can be an outstanding obligation in the hands of any person. But, if this were the law of this Commonwealth, it has never been determined, as against the holder of this bond or its coupons, if there be any, that this bond was never issued by the corporation, although, as publication of this bill has been made, and no person has appeared, claiming as holder of the bond, or claiming any interest in the trust fund, any decree made in the cause might protect the trustees. But it is, to say the least, doubtful if such is the law of this Commonwealth. See Worcester County Bank v. Dorchester Bank, 10 Cush. 488; Wyer v. Dorchester Bank, 11 Cush. 51. Besides, it was as security against the possibility of just this liability, under all the facts then known to these receivers, that this money was deposited with these trustees.
It is also contended that a court of equity, in the exercise of its power of winding up a corporation and of distributing its property among those entitled to it, may take this money and distribute it, and leave the bondholder, if there be one, to recover the value of his debt of the stockholders among whom the property is distributed. It does not distinctly appear by the pleadings that the East Boston Ferry Company has been dissolved, pursuant to the Gen. Sts. c. 68, § 35; but, even if it
This is in effect a suit for the purpose of declaring a trust created by the plaintiffs terminated, and of ordering the funds in the hands of the trustees paid to the plaintiffs, on the ground that there is no reason why the trust should longer continue, and it is instituted by the plaintiffs under the power contained in the order appointing them receivers and authorizing them to collect and recover the property of the corporation. It is the specific equitable lien on the trust fund which a bondholder may have which the plaintiffs ask may be dissolved, that they may obtain the money and distribute it among the stockholders of the corporation. The trust has not, according to its terms, expired, whether the money be regarded as substituted for the original trust property, or held on a distinct trust. The bill alleges that the money was to be held by the trustees until such time as such bond and coupons were paid, or the right of any holder thereof, if any there were, was extinguished. The court, as a court of equity, has jurisdiction to enforce and regulate the execution of trusts ; and, in the absence of any statute directly applicable to such a case as this, it may be that the court can, after giving such notice as it deems sufficient, proceed to inquire whether there is any person beneficially interested in the trust, and may determine this question, and, if it determines that there is none, may declare the trust terminated, and direct the trust funds to be transferred to the persons entitled to them; and that such a decree would protect the trustees against any personal liability for acts done in compliance with its terms. Assuming this to be so, yet as the plaintiffs do not offer to give any security that may avail the bondholder, if any shall appear hereafter, and as the corporation has probably been dissolved, we think, on the facts of this case, that no decree compelling the
Bill dismissed.