237 Mass. 73 | Mass. | 1921
The will of Frances Rupp was duly allowed by the Probate Court for the county of Norfolk in April, 1867. By its sixth clause one undivided eighth part of the residue of the personal estate was bequeathed to a trustee for the benefit of Frances Josephine Young (granddaughter of the testatrix), during her life, with remainder over, in default of issue, to her brother John R. Withington or his issue. The eighth clause created a
In May, 1887, the respondent Drury petitioned to be appointed trustee under the will, to succeed David C. M. Rupp, then deceased. The appointment duly followed, and he gave bond in the sum of $100,000, with the respondent Fidelity and Casualty Company as surety. Three parcels of real estate, of the value of $120,666.66 were included in his inventory. In 1891, as trustee under the will, he conveyed the most valuable parcel to one Young, took back a deed to himself individually, and executed an instrument creating the “Rupp Trust.” The trust instrument recited, “Said William H. Drury for the trust existing in favor of Frances J. Young of said Newton under the sixth clause of said will, subscribes or contributes to said capital twenty-three thousand dollars which is the nominal value of his present share or interest in this trust in his representative capacity for that trust.” In his fourth account as trustee under the will, sworn to in 1891, Drury charged himself with the proceeds of this first sale, fixing the amount paid “to trust for Frances J. Young” at $21,-966.54. In his first separate account as trustee for the benefit of Mrs. Young, under clause six of the will, also sworn to in January, 1891, he charged himself with $27,172143 as the total trust fund held for her, including said $21,966.54. Subsequently the remainder of the real estate was sold and the proceeds included in this Rupp Trust. In the fourth separate account, apparently sworn to February 23, 1894, the total amount of the estate held for Mrs. Young appears as $35,222.05.
Previous to April 4, 1900, no account of Drury as trustee for the benefit of Mrs. Young had been allowed. On that day the Probate Court allowed his first, second, third, fourth, fifth and sixth separate accounts, as trustee under the will of Frances Rupp, “for the benefit of Frances J. Young, during her life, under clause
The respondent Drury continued to act as trustee under the will of Frances Rupp until May 26, 1916, when he was removed for cause; and the petitioner was duly appointed in his stead. On her petition the Probate Court on February 7, 1917, vacated the said decree discharging the respondent company as surety on the bond of William H. Drury, trustee. A late entry of its appeal therefrom was allowed by this court. Fidelity & Casualty Co. v. Withington, 229 Mass. 537. On April 8, 1919, the Probate Court vacated the decrees allowing the first, second, third, fourth, fifth and sixth separate accounts of Drury, trustee. Both respondents appealed to this court; and a single justice, after hearing, affirmed the said decrees of the Probate Court, of February 7, 1917, and April 8, 1919. The cases are here on appeals from his decision.
1. As to reopening the accounts of the trustee. It is to be noted that his final account has not yet been passed upon by the Probate Court. On the settlement of said six accounts no guardian ad litem was appointed under R. L. c. 150, § 22; and on the settlement of the final account the earlier ones may be opened under § 17, so as to correct a mistake or error therein. It is not claimed that the assent of Mrs. Young to the allowance of said
Without further detailed examination of said six accounts, it is manifest from what has been said that we cannot say the single justice was wrong in reopening them. As to the suggestion that in any event only the last two should be opened for examination, we adopt what the respondents say in another part of their brief: “as all six separate accounts were presented together, they must be considered all together, and as a continuing or serial story.”
2. As to vacating the decree of June 20, 1900, discharging the respondent company as surety. Much that has already been said is applicable here. It is strenuously argued by the surety company that the $100,000 bond in question was given for the faithful performance by the trustee of his duties under the eighth clause of the will of Frances Rupp, and not under the sixth clause; and that the trustee distributed all the property in his hands under the eighth clause before its discharge. There is nothing in the petition of Drury, in the decree appointing him, or in the bond executed by the respondent company, to support this claim. He was the sole and general trustee under the will. The inventory showed in.detail all of the real estate of Mrs. Rupp, and the personal estate as held under the first, second, fourth, sixth and eighth clauses of her will. In his accounts the trustee included the property held under both the sixth and the eighth clauses. It now appears that all of the property held in trust for Mrs. Young has been dissipated. The respondent company, which was paid to provide security for her, was discharged on the basis of false accounts presented to the Probate Court by the respondent Drury. Presumably the discharge' would not have been granted if the facts, especially the omission of $30,016.16 from the sixth separate account, had been brought to the attention of the court. The company permitted Drury to prepare and present the petition for its discharge, and profited by his assent thereto, without making any apparent effort to discover whether he had faithfully performed his trust. It seems significant that the bond was not reduced, and the same surety retained, rather than exchanged for one with inexperienced women as sureties. Admittedly the petitioner has not been guilty of loches. We cannot say that the single justice was plainly wrong in affirming the decree of the Probate
In the case of each appeal let the entry be
Decree affirmed.