176 Mass. 554 | Mass. | 1900
This case comes up on an appeal from a decree overruling the plaintiff’s exceptions to the master’s report and dismissing the bill. The only questions argued in this court are the two questions, whether the plaintiff has been guilty of such unreasonable delay, either in making a demand or in bring
From the findings made by the master, it appears that on the 30th day of September, 1869, the plaintiff and the defendant, who are brothers, executed an indenture of trust, by which the plaintiff transferred to the defendant certain personal property of the face valué of $23,500, in trust to sell, invest, and hold the same for the benefit of the plaintiff, until the indenture was revoked by a writing to that effect recorded in the Suffolk Registry of Deeds; the personal property so transferred to the defendant consisted of four notes, five railroad bonds, and two bonds of the United States of America. The investments which by the indenture of trust it was contemplated should be made were investments in real estate.
Two days after the execution of the indenture the four notes were paid, and $17,000, the amount thereof, together with $300.09, interest, was received by the defendant. On June 6, 1872, two years and eight months after the date of the indenture of trust, the United States bonds were sold, and the proceeds, amounting to $1,681.87, were received by the defendant; and three months later, or nearly three years after the date of the indenture, the railroad bonds were paid at maturity to the defendant and the proceeds, $4,985, were also received by the defendant. In 1872, and after this sale, the defendant invested $6,011.77 of the trust funds in discounting a note of Richardson, Page, and Company, due in six months; this was repaid seven months afterward, with interest for the time it was overdue. With the exception of this investment all the money received from the collection and sale of the personal property transferred to the defendant by the indenture of trust was used by him in his own investments.
The defendant had on his books a ledger account with the plaintiff which had been begun before the indenture of September 30, and was continued after that date without change. In this account the defendant was credited with the proceeds of the four notes, five railroad bonds, and two United States bonds as they were received, and with interest at seven per cent on the daily balance of cash in the defendant’s hands; in this account was also entered the interest on the original investments, and
Except in the years 1869 and 1870, the payments made by the defendant to the plaintiff “ were uniformly less than the total amounts carried to his credit, so that the amount standing to the credit of the plaintiff steadily increased, and by the end of the year 1877 it amounted to $29,086.99, which was more than the proceeds of the original securities by nearly $5500.” “ By the end of the year 1877, they [the defendant’s investments] were entirely gone, and the defendant was financially ruined; ” in 1877 all remittances from the defendant to the plaintiff stopped, and the plaintiff was made aware, by the stopping of these remittances, “ that the defendant was unable to meet his obligations, and the defendant’s financial failure soon became well known to the plaintiff through other members of his family.”
The plaintiff, who was a physician, went to Europe shortly after the execution of the indenture of trust, and remained there until the end of the year 1893, with the exceptions of a short time in 1874 and of six months in 1889; since 1893 the plaintiff has remained in this country. The defendant is a lawyer and resided in Boston during all the time in question. On April 1, 1895, the plaintiff filed in the Suffolk Registry of Deeds a revocation of the trust, and, on the 13th of May following, brought this bill against the defendant for an accounting.
The master made the following findings: “ On the evidence as a whole, I find that the defendant took and used the plaintiff’s money allowing him interest thereon, and made himself a debtor for the sums so used; that he informed the plaintiff
The master has found that when the defendant was ruined financially at the end of the year 1877 and all remittances from him stopped and the defendant’s financial ruin became known to the plaintiff, as it did shortly after it took place, there was no longer any trust in existence in fact, although the indenture of trust had not been technically revoked. When a trustee with the full knowledge of the cestui que trust has taken all the proceeds of the trust property and has become his debtor for it, the whole transaction has been reduced, in fact, to a debt due from the trustee to the cestui que trust. When this is followed by the financial ruin of the trustee, there is no room to hold that the trust relation also continues because by the understanding of the two, the debt was to be paid when a favorable investment should be found. In such a case there is ho trust property except the debt due from the trustee, which cannot be collected, and there is no occasion to end the trust, for it has been already changed into a debt. There was no recognition by the defendant of any trust after 1877. The suit, having been brought eighteen years after the transaction had been reduced to a mere chose in action, is barred by the statute of limitations.
The plaintiff argues that the charge of a five per cent commission on income is inconsistent with the conclusion that the defendant became a debtor of the plaintiff for the amount of the proceeds of the trust property. There seems to have been much confusion in the minds of both parties throughout these transactions ; but we agree with the master that this fact is not controlling, and in spite of it we affirm the finding made by the master on the whole evidence.
Decree dismissing the bill affirmed.