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equity require it and such creditor is not chargeable with culpable negligence in not prosecuting his claim. Complainant, having been compelled to take up notes indorsed for testator, was informed by the executors that the personal property was insufficient to pay the debts and was requested by them not to bring suit, in order that the real estate might be sold at private sale to increase the assets, from which the executors promised to pay complainant's claim. Thereafter, and before the two years expired, the executors sold the real estate under a license from the probate court, of which complainant was not informed until after the two years had expired, and on a bill subsequently filed the court found that the complainant had not been guilty of culpable negligence in not previously instituting suit. Held, that complainant was entitled to equitable relief notwithstanding the delay.
[Ed. Note.-For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, § 1764.]
2. SAME-EXECUTORS' GOOD FAITH-MUTUAL
The fact that the executors acted in good faith, and that by mutual mistake both they and complainant believed that if complainant brought suit he could force a sale of the land, and that the balance due complainant could be paid at any time, whether action was brought or not within two years, did not establish as a matter of law that complainant was guilty of culpable negligence or that equity did not require payment of his claim.
[Ed. Note. For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, § 1764.]
Appeal from Supreme Judicial Court, Norfolk County.
Bill by John McMahon against Rosina B. Miller and others, as executors of the estate of Amos H. Miller, deceased. A decree was rendered in favor of defendants, and plaintiff appeals. Reversed.
John E. Hannigan and Isidor Fox, for appellant. Jos. O. Burdett, for appellees.
MORTON, J. This is a bill in equity for relief under Rev. Laws, c. 141, § 10. The presiding justice ruled on the facts found by him, that the plaintiff had not been guilty of culpable negligence, but ruled that there was a mutual mistake of law on the part of the plaintiff and defendants and that the plaintiff was not entitled to relief under Rev. Laws, c. 141, § 10, as interpreted by Powow River Nat. Bank v. Abbott, 179 Mass. 336, 60 N. E. 973, and d'smissed the bill with costs. The plaintiff appealed.
We think that the decree dismissing the bill was wrong, and that the plaintiff is entitled to the relief which he seeks. We treat what is called a ruling as in effect a finding that the plaintiff was not guilty of culpable neglect which are the words of the statute and as intended to express the conclusion to which the presiding justice came on that question on the evidence before him and the facts as found by him. That finding distinguishes this case from most if not all of the previous cases which have arisen under this statute. In those cases it was found or ruled t't the plaintiff was guilty
of culpable neglect. That was evidently the ground on which the case of the Powow River Nat. Bank v. Abbott, supra, was decided as shown by the cases cited in the first paragraph of the opinion and by the reasoning of the court. It is plain, we think, that justice and equity require that the plaintiff should have the relief which he seeks. "The statute is remedial and its operation is not limited to cases where the failure to sue seasonably was due to such fraud, accident or mistake as would be ground for equitable relief if there were no such statute." Ewing v. King, 169 Mass. 97, 102, 47 N. E. 597. The plaintiff indorsed, for the accommodation of the defendant's testator, notes, the renewals of which came due after the testator's death and which the plaintiff was obliged to take up and on which there is a balance now due him of upwards of $1,700. The personal property belonging to the estate was not sufficient to pay the debts, but there was real estate available for that purpose. The defendant Widger with the knowledge of his coexecutor represented to the plaintiff that if a sale of the real estate were forced there might not be enough to pay the debts and that if the sale was not forced and the proceeds were sufficient the plaintiff's debt would be paid out of them. And he urged the plaintiff not to bring suit and to persuade the bank which held the testator's original notes not to do so. The plaintiff, who had been a warm personal and business friend of the testator, forebore to bring suit, and persuaded the bank also to forbear. Subsequently and before the two years expired the defendants, acting under a license from the probate court, sold a part of the real estate and realized therefrom $6,000. The plaintiff was not informed of this sale, and the defendants left him in ignorance of it, and he did not learn of it till after the two years had expired. The finding that the plaintiff was not guilty of "culpable negligence" must be taken to include, we think, a finding that there was no negligence on his part in failing to ascertain the facts with regard to the sale of the real estate. The fact that after the representations made by them the real estate was sold by the executors before the two years expired and that the sale was not made known to the plaintiff and he did not learn of it till after the two years expired, also distinguishes this case from the Powow River Nat. Bank v. Abbott, supra, and the cases referred to in the opinion in that case, and renders it more analogous to Ewing v. King, supra, Morey v. American Loan & Trust Co., 149 Mass. 253, 21 N. E. 384, and Knight v. Cunningham, 160 Mass. 580, 36 N. E. 466. The fact that the executors acted in good faith, as it is found that they did, and the further fact, which is also found, that they and the plaintiff were
mutually mistaken in believing that by bringing action a sale of the land could be forced, and that the balance due the plaintiff could be paid at any time, whether action were brought or not within the two years, do not, it seems to us, affect the right of the plaintiff to relief, even if we assume that such mistaken beliefs constituted a mistake of law, and entered into the conduct of the plaintiff. They do not show, as matter of law, that he was guilty of culpable neglect, or that justice and equity do not require that his claim should not be paid. There being no culpable neglect on the part of the plaintiff and justice and equity requiring it, it follows that the plaintiff is entitled to judgment for the balance due him.
Decree reversed and case to stand for hearing to determine the amount due the plaintiff and judgment to be entered accordingly.
(192 Mass. 337)
JORDAN et al. v. JORDAN. (Supreme Judicial Court of Massachusetts. Suffolk. June 20, 1906.)
1. TRUSTS-ADMINISTRATION-CHARGES-PRINCIPAL OR INCOME.
Where a building belonging to a trust estate was altered in the basement, first story, and other parts by providing an elevator, building a stairway, and other minor changes, and furnishing additional equipment for lighting, heating, and plumbing, for the purpose of securing tenants or for their accommodation, whereby the rental value of the building was increased, it was within the discretion of the trustee to charge the expense so incurred to the income, rather than to the principal, of the trust estate.
[Ed. Note. For cases in point, see vol. 47, Cent. Dig. Trusts, §§ 389, 390.]
Under a will directing a trustee to divide part of the decedent's estate into equal shares in trust for the benefit of certain persons, providing that, if such division were inconvenient, it need not be made, but that the proportionate share of the income should be paid to each of the persons named, where a part of the estate. was unproductive, but was sold at a profit, the trustee was not required to treat any part of the sum received as income because of the delay in producing income.
[Ed. Note. For cases in point, see vol. 47, Cent. Dig. Trusts, §§ 383-385.]
3. SAME BROKER'S COMMISSION.
A broker's commission for the sale of a parcel of real estate belonging to a trust estate was properly paid from the income, rather than the principal.
[Ed. Note.-For cases in point, see vol. 47, Cent. Dig. Trusts, §§ 389-392.]
Case Reserved from Supreme Judicial Court, Suffolk County.
Action by Eben D. Jordan and others against James C. Jordan. From a decree allowing the accounts of plaintiffs as trustees under the will of Eber. D. Jordan, deceased, defendant appeals. Case reserved for full court. Affirmed.
Chas. E. Rushmore, for Jas. C. Jordan. Roger F. Sturgis, for guardian ad litem. Chas. K. Cobb, for executors and trustees.
BRALEY, J. By the will of the testator after devising in article 5 his mansion house to his wife, the residue of the estate consisting of real and personal property to a large amount is given to trustees "in trust to manage and invest the same in a careful and prudent manner, and receive the income therefrom, and after deducting and paying from said income all taxes and other charges incidental thereto including a reasonable compensation to compensation to the trustees * ** to pay to my said wife out of the remainder of said income, if she shall survive me, the yearly sum of twenty-five thousand dollars during the term of her natural life." He then proceeds, subject to this provision, to provide for his four children and their issue, which as to his son James included only the children by his first wife, by further directing the trustees "to divide all said rest, residue and remainder of said estate and property * * * into such a number of equal shares that there shall be one share held in trust for the benefit" of each of them. Upon such division being made it then becomes the duty of the trustees "to manage such general share in a careful and prudent manner, and invest from time to time in a careful and prudent manner such part thereof as may be uninvested, and collect and receive the income from such general share, and after paying from the income of such general share all taxes and other charges incidental to such general share, including a reasonable compensation to the trustees for the time being for their services in respect to such general share to pay the residue of the income of such general share to the son or daughter of mine for whose benefit such general share is held in trust." But it is further provided if the trustees find it inconvenient this division need not be made, and only his or her proportionate share of the income need be ascertained and paid over to the beneficiary. This course has been followed as the trustees thus far have treated the estate as undivided. article 16 their discretionary powers are defined in those words, "full power and authority are hereby given to the trustees for the time being under any article of this my will to change from time to time the investment or reinvestment of the whole or any part of the property held in trust by such trustees, and for this purpose to sell the whole or any part thereof at public auction, or by private sale, and for such consideration and on such terms as such trustees shall deem expedient, and convey the same by good and sufficient deed or deeds in fee or other transfers or conveyances to the purchaser or purchasers discharged of all trusts, and receive the proceeds of such sale, but such proceeds shall be invested
the income could be kept either at a fixed standard, or increased in amount. They are found by the auditor to have acted in good faith, and with reasonable judgment in deciding that these changes were advisable. Because of some of these alterations, the buildings may have been intrinsically more valuable than before, and in a certain sense they are permanent in character, but already there has been a partial restoration of one building to its original condition at the expense of capital and what other changes may be reasonably required in the future to obtain and keep tenants cannot of course be anticipated.
such other property as they shall deem safe | render the whole estate productive, so that and prudent investments, but to be held upon the same trusts. * A portion of the personalty has been converted into realty by a purchase of the premises described as the "Park Square Tract," and by building an apartment house in "Trinity Court," and while three parcels of real property of which he died seised have been sold, the fee in one has been acquired under the foreclosure of a mortgage held by the testator at his death. With these exceptions and the transfer in compliance with a contract of the testator of certain shares of corporate stock out of a large number owned by him, and the liquidation of his interest in the mercantile firm of which he was a member, there appear to have been no substantial changes in the form of the property as received by them. The widow has since deceased, but the children survive, and from time to time the trustees have rendered accounts of their trust in which receipts, expenditures and investments are shown, and while apparently assented to by the other beneficiaries, the appellant, who originally objected to their allowance on many grounds that under the appeal have become eliminated still claims that the first six accounts should be reformed so that certain sums credited to income should be charged to capital. These objections rest upon two grounds, either that the items now in dispute for repairs, alterations and improvements were of such a permanent character that they should have been so charged, or that if the taxes and maintenance of any separate parcel exceeded the income therefrom, the deficit should not have been finally supplied from the general income, but upon sale of the land should have been taken from principal.
In adapting, after completion, the basement, first story, and other parts of the building erected by them, by providing an elevator, building a stairway, with other minor changes, and furnishing additional equipment of lighting, heating and plumbing, and in remodeling and fitting the third story of another building left by the testator, for the purpose either of securing tenants, or for their accommodation, many changes or improvements were made, some of which are now claimed to have been permanent in character. These alterations increased the rental value of the property, and if the total cost both of construction and equipment, of which these items form only a part, come out of the remaindermen, then as no part of this burden is borne by the beneficiaries for life they would receive a benefit wholly at the expense of those who ultimately would participate in a division of the estate at the determination of the trust. Under the large discretionary powers conferred, the trustees, in the exercise of a sound business administration might find it expedient from time to time to make extensive alterations in the real property in order to obtain tenants, and
In the management of such property details of administration must be left very largely to the sound discretion of those intrusted by the testator with its development as a source of revenue, and these disbursements having been found justifiable, the apportionment by the trustees so far as they are now in dispute does not appear to have been erroneous. After making an adjustment as to all expenditures which clearly belonged either to capital or income, there remain those in dispute, and these charges though debatable they credited to income But upon consideration of the principal object sought which was to retain or increase rental values, no satisfactory reason is shown why these several outlays should not as a whole be treated as being in the nature of occasional repairs, or improvements, which did not permanently increase the value of the inheritance, but did enhance income, and to the payment of which, capital that already had borne what was plainly deemed its proportional legitimate part, should not be made further to contribute. Sohier v. Eldredge, 103 Mass. 345, 351; Little v. Little, 161 Mass 188, 202, 36 N. E. 795. This may be said to be in accordance with the general rule that in the absence of a different testamentary direction, or of an agreement as to apportionment between the tenant for life, and the reversioner ordinarily taxes, insurance, and all incidental expenses of the maintenance of real property, which forms a part of an estate held in trust, whether left by a testator, or purchased by the trustees are to be paid from income. Parsons v. Winslow, 16 Mass. 368; Little v. Little, ubi supra; Holmes v. Taber, 9 Allen, 246; New England Trust Co. v. Eaton, 140 Mass. 532, 4 N. E. 69, 54 Am. Rep. 493; Plympton v. Boston Dispensary, 106 Mass. 544; Howland v. Green, 108 Mass. 277; Bridge v. Bridge, 146 Mass. 373, 376, 15 N. E. 899. The case of Stone v. Littlefield, 151 Mass. 485, 24 N. E. 592, which the appellant suggests supports a different doctrine is not in conflict. In that case the ordinary rule that taxes should come out of income was not followed because they had become a lien on the property when the trustee acquired title under the foreclosure of a mortgage taken by the testator,
and their payment was necessary before a satisfactory title could be given to the purchaser to whom he afterwards sold. Upon a sale under such conditions capital either receives the benefit of any gain, or must bear the burden of any loss, and the trustee therefore, could not at the expense of income retain the amount of the taxes in anticipation that a sale in fee by him would not produce enough to satisfy the mortgage debt with the incidental disbursements. Worcester City Missionary Society v. Memorial Church, 186 Mass. 531, 533, 539, 72 N. E. 71. Included in the estate were several parcels of realty left by the testator, which taken separately have either been entirely unproductive, or have not produced sufficient income to pay taxes and costs of maintenance, and the trustees have supplied this deficiency from the income received from the remainder of the property. While the two investments in realty made by the trustees need not be considered as each has yielded sufficient returns to pay taxes and expenses, and the propriety of the purchase of the estate in Park Square is now unquestioned, a sale at a profit above the inventory having been made within a period of five years elapsing after the testator's death of three parcels of the unproductive real estate, an argument also is urgently pressed that out of the proceeds enough should then have been transferred to income to cover any loss occasioned by this delay. It is settled that trustees without unnecessary delay are to convert unproductive property received from a testator into a fund which will produce revenue, and when so created the right of the life tenant to the income is to be ascertained, and the income computed from the time of the testator's death. Edwards v. Edwards, 183 Mass. 581, 583, 67 N. E. 658, and cases cited. In that case on which the appellant strongly relies the testator directed that his property, the bulk of which consisted of unproductive land, and of speculative investments in stocks carried on margins, should be converted into sound securities, and after paying a small annuity to his son and daughter-in-law the remainder of the income was to go to his wife for life. It is obvious that his sole purpose was to create a permanent fund safely invested, the returns from which should be immediately available for their support. But in the present case the life tenants were not dependent upon the testator, and the scheme of the will plainly indicates that he anticipated that the establishment of the trust fund even before any division into shares became advisable might be prolonged in time. The trustees were not required to divide the estate, which was not only of great value, but nearly one third of which consisted of real property into "separate and distinct shares" if such division was found inconvenient, or inexpedient. If not done "then so long as it shall not be necessary to actually divide the same, to hold
the same in undivided shares," which included these particular investments made by the testator, and the cautionary direction found in the twenty-fourth article of his will, while not absolutely binding upon them, is indicative that he contemplated that his trustees if they followed his judgment might delay the conversion. Harvard College v. Amory, 9 Pick. 446, 462. If they adopted this course then their action was in accordance with his suggested intention, and when any of these parcels were converted into money the life tenants were not entitled to have any part of the proceeds treated as income and deducted before the whole fell into principal, for being in receipt of the net income from the entire trust as constituted by him, which is not only shown to have been reasonably adequate, but has been paid to them from the time of his death, they were realizing all the benefit therefrom which he intended, even if a part of the estate during this time remained barren. Lovering v. Minot, 9 Cush. 151, 158; Eldredge v. Heard, 106 Mass. 579; Green v. Crapo, 181 Mass. 55, 62 N. E. 956; Edwards v. Edwards, ubi supra.
A further objection is taken to the payment from income of a broker's commission for negotiating the sale of a parcel of improved realty, but there would seem to be no difference in principle between such a sale, and a similar method of disposing of personalty by trustees, where it has been held that such an appropriation from income was authorized. Heard v. Eldredge, 109 Mass. 258, 12 Am. Rep. 687. If the question were open objections which perhaps could be soundly urged against this rule would call for careful examination, but the rule has been so long settled, and presumably followed by trustees that it ought not to be disturbed. See New England Trust Co. v. Eaton, 140 Mass. 532, 545, 4 N. E. 69, 54 Am. Rep. 493.
A decree is to be entered affirming the decrees of the probate court. Ordered accordingly.
(192 Mass. 409)
ELDREDGE v. NICKERSON et al. (Supreme Judicial Court of Massachusetts. Suffolk. June 20, 1906.)
1. ELECTIONS STATUTES.
Rev. Laws, c. 11, § 239, provides that the presiding officer at every polling place at elections of state, city, and town officers in towns "in which official ballots are used," shall, after the record of the counting has been made, cause all ballots cast to be publicly inclosed in an envelope and sealed and delivered to the city or town clerk, etc. Section 345 declares that if the town clerk, and certain other officers are voted for on one ballot, the moderator shall cause all such ballots, when canvassed and counted and a record thereof has been made, to be publicly inclosed in an envelope and sealed as provided by section 239. Held, that where, at a town election, the town did not use the official ballot, and persons to fill the offices of town clerk, etc., were not voted for on one
ballot, the ballots used at such election were not required to be inclosed and preserved. 2. SAME-RECOUNT-STATUTES-APPLICATION.
Rev. Laws, c. 11, § 267, declares that when an application for a recount of votes is made, the envelopes, containing the ballots sealed, are to be transmitted by the town clerk to the registrars of voters who are to open the envelopes, recount the ballots, and determine the questions raised. Held, that such section, which was the only one providing for a recount after an election of town officers, did not authorize a recount except in towns where the official ballot was used or where the officers were voted for on one ballot.
Report from Supreme Judicial Court, Suffolk County.
Petition by one Eldredge for writ of mandamus against one Nickerson and others to compel recognition of petitioner as a member of the board of selectmen of Chatham. In the Supreme Judicial Court, the case was reported to the full court.
Fletcher Ranney and Chas. Bassett, for petitioner. Heman A. Harding, for respondent.
KNOWLTON, C. J. At a meeting of the voters of the town of Chatham for the election of town officers, after the votes had been counted it was announced by the moderator that the petitioner had received 152 votes for the office of selectman, assessor and overseer of the poor, and the respondent Oliver E. Eldredge had received 149 votes. The petitioner was then declared elected, and due record was made accordingly. Afterwards he took the oath of office and entered upon the performance of his duties. Upon these facts it would appear that he was duly elected, and he would be entitled to hold the office throughout its term if there were nothing to deprive him of the right.
Subsequently measures were taken to obtain a recount of the ballots. A recount was made by the registrars of voters. They found that the respondent Eldredge had received 152 votes and the petitioner only 151 votes, and the records of the town were amended accordingly. The respondent Eldredge has been recognized by the other respondents as duly elected, and is now in the performances of the duties of the office. The questions are whether such a recount was authorized by the statute, and whether this recount was inaugurated and conducted in accordance with the provisions of law, so as to deprive the petitioner of the office, to which he was regularly declared elected at the town meeting.
As proceedings for a recount of votes are strictly statutory, they are of no effect unless they are authorized by the statute and begun and conducted as the statute provides. The town did not use the official ballot, and the town clerk, selectmen, assessors, treasurer, collector of taxes and school committee were not voted for on one ballot. It is only when one or the other of these conditions exists that the statute provides for inclosing the
ballots in envelopes and preserving them. Rev. Laws, c. 11, §§ 239, 345. Under Rev. Laws, c. 11, § 267, when an application for a recount of votes is made, "the envelopes containing the ballots, sealed," are to be transmitted by the town clerk to the registrars of voters, who are "to open the envelopes, recount the ballots and determine the questions raised." This section which is the only one providing for a recount of votes after an election of town officers, is applicable only to those cases where the statute requires the ballots "to be publicly inclosed in an envelope and sealed up with the seal provided for the purpose." It follows that, except in towns where the official ballot is used, or where the officers above mentioned are "voted for on one ballot, no recount of votes can be had after the result of the election has been announced and recorded and the meeting has been adjourned. This view is strengthened by reference to similar provisions of earlier statutes. St. 1886, p. 202, c. 262, § 2, St. 1886, p. 211, c. 264, § 11, St. 1890, pp. 422-450, c. 423, §§ 97-226, St. 1893, pp. 1217, 1231, 1255, c. 417, §§ 174, 208, 276. It therefore becomes unnecessary to consider the other alleged defects in the proceedings on which the recount was founded, some of which appear to be important.
As the registrars of voters had no jurisdiction to recount the votes, the result of their action cannot be considered, and the election declared by the voters in town meeting is valid.
Peremptory writ of mandamus to issue.
PURDON v. BLINN.
(192 Mass. 387)
(Supreme Judicial Court of Massachusetts. Suffolk. June 20, 1906.)
1. ABSENTEES-STATUTORY PROVISIONS-CON
The claim of a divorced wife under a decree for alimony in gross is a debt of the estate of her former husband, within Rev. Laws, c. 144, § 9, providing that the court may order the property of absentees to be applied to the discharge of such debts as may be proved against them.
A claim for alimony against the property of an absentee in the hands of a receiver may be proved and allowed, without personal notice to the absentee, on proper general notice to the receiver and persons within the jurisdiction interested in the estate.
Report from Supreme Judicial Court, Suffolk County.
Petition by one Purdon against one Blinn. Decree for petitioner, and case reported from the Supreme Judicial Court. Affirmed.
Fred A. Fernald, for petitioner. Adams & Blinn, for respondent.
KNOWLTON, C. J. This is a petition brought under Rev. Laws, c. 144, § 9, relative to property in the hands of a person appointed receiver of the estate of a resident of the commonwealth who "has disappeared,