Goodsell v. McElroy Brothers Co.

Prentice, J. The defendant in its answer has not put in issue the right of the plaintiffs to maintain their action as trustees under the will, by specifically deny *406 ing such right as required in § 609 of the General Statutes. It has simply denied an allegation of the complaint that the plaintiffs accepted the trust under the will. The utmost effect, in any view of this denial, which could be given to it, was to entitle the defendant to call in question the plaintiffs’ standing as trustees by reason of a failure on their part to accept the trust. The trial court gave the defendant the full benefit of the narrow issue of fact thus presented, and determined it against its contention. There was ample justification for such a conclusion in both the presumption which the law would raise from the plaintiffs’ qualification as executors, and the affirmative evidence of their conduct in their official relation to the estate, both before and after the allowance of their final account as executors. Baldwin v. Porter, 12 Conn. 473, 481. No action of any court was necessary to give effect to such acceptance. It was a matter for individual decision and action, and there could be no surer indication of that decision and action than their conduct touching the property which was to form the trust fund. Proof that the plaintiffs before the allowance of their final account as executors did acts in relation to the estate in their hands which were those of trustees, and after such allowance dealt with the estate, and with those who were beneficiaries thereof under the terms of the trust, as trustees under such terms would, and as persons in other capacities would not, was, therefore, most pertinent, and was rightfully admitted. The second of the issues arises from the denial of the allegation of the complaint that the plaintiffs, after the allowance of their final account as executors, held the residuary estate remaining in their hands as trustees under the provisions of the will, and were so holding it at the time of the commencement of the action. The question already discussed is closely related to that *407 here presented, and the answer to the former enters as an important factor into a determination of the answer to be given to the latter. It having been found that there had been an acceptance of the trust, it only remained to inquire (1) whether the plaintiffs undertook the execution of the trust and the management of the trust estate in the capacity of trustees, and (2) whether, if so, there was any reason why the possession which they then had of that estate was not in contemplation of law to be regarded as possession by them in that capacity. The first of these inquiries is one of fact, and the court has answered it affirmatively. The evidence already considered was plainly pertinent to it, and • upon the strength of it no other conclusion than that reached could well have been arrived at. The defendant, however, urges that whatever may have been the plaintiffs’ notion of the capacity in which they were acting after the final settlement of the estate, and whatever capacity they may have undertaken to assume, they must be legally regarded as acting as executors and not as trustees, for the reason that there had never been such formal action taken as the law requires as a condition precedent to a change of capacities. In this connection, it is said that the legal consequence claimed must attach because there was no distribution by the Court of Probate, no inventory of the trust fund or trust account filed in that court, and no assignment, transfer, or delivery of the fund made, nor any one of these things. Under the conditions present in this case, no one of these formalities was necessary to a change in the character of the holding. The plaintiffs were by the will given the residuary estate of the deceased in a double fiduciary capacity, that estate came into and remained in their hands, the balance thereof remaining *408 after the execution of one trust belonged to the other, the amount of such balance had been definitely ascertained by the settlement of the final account of the executorship, and no bond or other formality was a prerequisite of qualification for the trusteeship. The court has found conduct on the part of the plaintiffs unequivocally indicating their intention, and declaring their election, to hold and administer the fund under the terms of the trust created by the will. The law will accordingly regard the fund as transferred and held in the new capacity. State ex rel. Lynch v. Whitehouse, 75 Conn. 410, 417, 53 Atl. 897; 80 Conn. 111, 120, 67 Atl. 503; State v. Cheston, 51 Md. 352, 376 et seq.; Ruffin v. Harrison, 81 N. Car. 208, 221; Bell v. The People, 94 Ill. 230, 237; Pratt v. Northam, 5 Mason (U. S.) 95, 108. The complaint alleges that the notes in suit constituted a part of the trust fund. This allegation is denied, thus creating the only remaining issue. The contention here is that they do not belong to the fund, for the reason that they have never been indorsed or otherwise assigned to the plaintiffs as trustees. It is urged in support of this contention that the defendant cannot and ought not to be compelled to pay the amount due upon this paper except to persons who have title thereto, and thus are legally entitled to receive the money. Section 4219 of the General Statutes furnishes a complete answer to this claim. Under its provisions, negotiable paper can be transferred by parol and delivery and without indorsement, thereby giving title to it. Meuer v. Phœnix Nat. Bank, 94 N. Y. App. Div. 331, 88 N. Y. Supp. 83; Goshen Nat. Bank v. Bingham, 118 N. Y. 349, 23 N. E. 180. There is no error. In this opinion the other judges concurred.