State Street Trust Co. v. Walker, 259 Mass. 578

State Street Trust Co. v. Walker

259 Mass. 578 | Mass. | 1927

Rugg, C.J.

Samuel A. Walker, who died in 1880, by the fourteenth clause of his will gave the residue of his estate to trustees,- with directions well and securely to “invest the same as soon as may be done, and keep the same so invested, in good mortgages of real estate, having greater regard to the goodness of the security than for the amount of income to be derived therefrom, and with full authority to loan the same upon mortgage as aforesaid at less than the legal rate, if they deem it necessary or expedient, and also with full power to change investments from time to time as they see fit.”

In December, 1892, Charles T. Russell and Joseph B. Russell, who wére then the trustees, invested $10,000 of the trust fund in a mortgage given by one Witherell on real estate to secure a note of that sum with interest at five per cent payable semiannually, the principal becoming due on December 16, 1897. At that time (1892) the district in which the mortgaged real estate was situated was a high class, single house residential district, and the mortgage was a *581proper investment for the trustees to make. At about that time the neighborhood began to change to a tenement house district. By 1902 such change had made obvious progress, but the trustees made no effort, so far as shown by the evidence, to collect the mortgage when it became payable or later, until foreclosure proceedings hereinafter mentioned. In July, 1898, the mortgagor made an assignment for the benefit of his creditors.

Charles T. Russell having deceased, Charles T. Russell (formerly junior) was appointed trustee to act jointly with Joseph B. Russell on March 16, 1896. On November 24, 1902, the State Street Trust Company was appointed trustee to act jointly with Joseph B. and Charles T. Russell. In. December, 1902, Joseph B. Russell resigned, and on September 28, 1903, Charles T. Russell having died, one Walker was appointed trustee to act jointly with the State Street Trust Company. Walker resigned in 1918, and on December 2, 1918, Leslie W. Millar, one of the accountants, was appointed to act jointly with the State Street Trust Company. Accounts were regularly filed, many of which were allowed, showing the Witherell note and mortgage as an investment at the value of $10,000. The first account joined in by the State Street Trust Company was the twentieth, allowed on January 5, 1903, in which the accountants charged themselves, among other investments, with the Witherell note and mortgage at a value of $10,000. Upon its appointment the State Street Trust Company appears to have taken possession of the securities and property of the trust and thereafter to have had the active management of the business of the trust. In 1903 the agent of the trust company examined The real estate secured by the Witherell note and mortgage, appraised the real estate at $8,000, and stated as his opinion that the “mortgage ought not to be over $5000.” There was no evidence that after the State Street Trust Company received the report of its appraiser any effort was made to collect or reduce the amount of the Witherell mortgage.

After the assignment made by Witherell in 1898, one Bradford paid the interest on the mortgage until June 16, *5821912. The mortgage note was not indorsed by him, and the trust company was informed of his death in 1913. Efforts to collect the note of Bradford’s estate were without success. On August 7,1913, the trustees foreclosed the mortgage and by mesne conveyance took title to themselves. They then endeavored to sell the property. A portion of it was sold, apparently in 1915, for $2,500, and the remainder finally disposed of, apparently in September, 1923, for $4,200. It has been found that there was no negligence on the part of the trustees in attempting to dispose of the property after the foreclosure in 1913.

The following further facts have been found: At the time of the appointment of the State Street Trust Company as trustee in November, 1902, the real estate securing the Witherell note had so shrunken in value that it was worth only $8,000, and the trust had thus suffered a loss by reason of the reduced value of said property. “I find that this loss was made by reason of the neglect of the trustees, Charles T. Russell and Joseph B. Russell and that the State Street Trust Company accepted the Witherell mortgage upon its appointment as cotrustee as a proper investment without investigation and took no steps to have its cotrustees charged with the loss that the trust had suffered under their management. I find that the State Street Trust Company after its appointment and after it had the report of” its real estate appraiser in 1903 “took no steps to protect the interests of the trust until Bradford stopped paying interest in December, 1912, and that during that period the mortgaged real estate still further depreciated in value. ... At the time of the appointment of said Millar as trustee [December 2, 1918]] the entire loss on account of the Witherell mortgage had been sustained. Said Millar has taken no steps to have the trust reimbursed.” The probate judge in arriving at the amount with which the trustees were to be charged on account of principal charged them with $10,000 and credited them with the total receipts from sale of the property after foreclosure, and disallowed the various credits which they asked for on account of expenses in handling and selling the property after foreclosure.

*583It was the duty of the trustees to exercise reasonable skill, prudence and judgment in their management of the trust. The decline in value of the real estate covered by the Witherell mortgage had begun before the maturity of the note, and this condition could have been discovered by the exercise of reasonable diligence. The safety and preservation of the principal of the investment were paramount. The amount of interest received was merely incidental. The proximate cause of the loss having been found to be due to the failure of the trustees then in office to foreclose, they were jointly and severally responsible for the loss. The State Street Trust Company, if it had examined the securities when it was appointed, could have ascertained the present value of the property, the change in the condition of the neighborhood and the consequent depreciation. The report of its expert called these matters directly to its attention. Whether the delay was unreasonable was a question" for the decision of the trial judge, and his finding that the trustees failed to comply with the directions in the will of the testator- was justified by the facts reported. If an examination had been made, the negligence of the trustees who took the mortgage, one of whom remained a cotrustee until December, 1902, would have been disclosed and proper measures to compel reimbursement could have been taken. Childs v. Jordan, 106 Mass. 321. The State Street Trust Company failed to protect the rights of the beneficiaries, according to the findings of the judge, and carried the Witherell mortgage through several accounts at its original value after the shrinkage was known to it, of which the beneficiaries were ignorant. It is therefore chargeable with the investment less the amount received upon foreclosure. The charges for expenses incurred in handling and selling the property after foreclosure were disallowed rightly. Boynton v. Dyer, 18 Pick. 1, 6. Blake v. Pegram, 109 Mass. 541, 552. Forbes v. Ware, 172 Mass. 306. See G. L. c. 206, §§ 4-6.

There is nothing in this record which warrants the requirement that Millar as trustee make up, or share in making up, the loss which has been suffered by the trust. He was not *584appointed a trustee until 1918. The entire loss on the Witherell mortgage had been sustained long before that time. It had been converted from a mortgage security into the real estate by the foreclosure in 1913. There is no finding that he has been negligent in any particular. Confessedly there has been no negligence on the part of the trustees since the foreclosure in 1913. Reasonable diligence has been exercised in disposing of that real estate. It has been found that the loss to the trust occurred by reason of the neglect of the Russells and the failure of the State Street Trust Company upon its appointment in 1902 to investigate the propriety of the Witherell mortgage as an investment and to take appropriate steps then to protect the interests of the trust. These events occurred fifteen or sixteen years before the appointment of Millar. An examination by him of the condition of the trust for a period of five years before his appointment would not have disclosed the existence of the Witherell mortgage. The only finding concerning him is that he has made no attempt “to have the trust reimbursed.” There is no evidence to show that he could by any efforts have secured a reimbursement to the trust. The order of the court that the trust shall be reimbursed was right, but the entire loss must be borne by the State Street Trust Company and Millar exonerated from personal liability. The Probate Court was also right in holding that the loss of income follows from the loss of principal and that the beneficiaries should also receive simple interest at the rate of five per cent on the amount of the loss. Boynton v. Dyer, supra. Mclntire v. Mower, 204 Mass. 233, Dewey v. Burke, 246 Mass. 435.

The beneficiaries contend that the allowance to Millar, a resident in another State, of certain personal expenses of transportation should have been disallowed. Whether this charge should be allowed rested in the discretion of the judge under G. L. c. 215, § 45, and his finding that it was reasonable and proper must stand.

The findings of the judge as to the interest and the amount to which the trust should be reimbursed are correct.

All the findings of fact are supported by the evidence and *585are not shown to be plainly wrong. Lindsey v. Bird, 193 Mass. 200.

Final decree is to be modified in accordance with this opinion and as modified affirmed.

Ordered accordingly.