Bradstreet v. Butterfield

Gray, C. J. The validity and effect of the decree made by this court in Middlesex at October term 1860 depend upon the provisions of the General Statutes. Gen. Sts. c. 181, § 2. The provisions of those statutes conferring general jurisdiction in equity upon this court do not usually direct in what county suits in equity shall be brought, but leave that question to be [342] determined by the nature of the subject matter, the analogies to be derived from actions at law, and the practice of courts of chancery. The principal if not the only cases in which there is express legislation upon this point are those of suits for the redemption of lands from levy on execution or from mortgage, of which the Superior Court has concurrent jurisdiction, and which must be brought in the county in which the land lies ; and suits for the redemption of mortgages to the Commonwealth, which must be brought in this court in Suffolk. Gen. Sts. c. 108, § 29; c. 140, §§ 23, 48. Applications to this court sitting in equity for the appointment of trustees under a will have in practice been made either in the county in which the will has been admitted to probate, according to the rule governing the probate courts in like cases, or in a county in which land forming part of the trust estate is situated, according to the rule in real actions. Gen. Sts. c. 100, §§ 1, 7, 8, 9, 11, 14, 17, 22; c. 123, § 2. Although it is more usual and convenient that the appointment and the record thereof should be in the same county with the probate of the will, yet a decree made, without objection, in another county, in which part of the trust estate is situated, is not void, and cannot be collaterally impeached. Story Eq. Pl. §§ 486, 487. The fact that the petition presented to and acted on by the court in Middlesex was in form addressed to the court in Suffolk is immaterial.. If the objection of want of notice to all parties interested is open to the demandants in this action, (which is at least doubtful,) it is a sufficient answer that it does not appear that any person was interested in the appointment of a new trustee, except James W. Stearns, the petitioner; for during his life it could not be known who would be his heirs at law; and there was at that time no provision of statute requiring the appointment of any one to represent contingent interests. See Greene v. Borland, 4 Met. 330; Sts. 1863, c. 25; 1864, c. 168. The new trustee must therefore be held to have been lawfully appointed, and the remaining question is whether his omission to give bond for the performance of his trust is fatal to the validity of the deeds executed by him, and under which the tenants claim title. [343] The demandants rely on the provisions of the Gen. Sts. c. 100, the construction and effect of which may be made clear by referring to the previous statutes incorporated therein, as was done by the court in the decisions by which it was established that no bond was required of trustees for public charities. Lowell, appellant, 22 Tick. 215, 220. Drury v. Natick, 10 Allen, 169, 176. Under the Revised Statutes of 1836, which reenacted corresponding provisions of the St. of 1817, c. 190, every trustee under a will for minors or other persons, originally named therein or afterwards appointed by the judge of probate, (unless exempted by the testator, or by consent of all persons interested,) was required to give bond to the judge of probate. Rev. Sts. c. 69, §§ 1, 2, 4, 9. St. 1817, c. 190, §§ 37, 38, 40, 41. But those statutes in no way affected the general jurisdiction in equity of this court over trusts under deeds and wills and in the settlement of estates, and prescribed no rules as to the appointment of trustees by this court in the exercise of this jurisdiction, or as to the giving of bonds by trustees so appointed. Sts. 1817, c. 87; c. 190, § 37. Rev. Sts. c. 81, § 8. Bowditch v. Banuelos, 1 Gray, 220. Gen. Sts. c. 113, § 2. The St. of 1843, c. 19, merely extended the provisions of the Rev. Sts. c. 69, §§ 7, 8, as to the removal of trustees and the appointment of new ones by the judge of probate, to trusts created by deed, without making any change in the law as to trusts created by will. By the St. of 1852, c. 212, it was enacted that the justices, of this court and the judges of the several courts of probate in the several counties might remove any trustee of an estate “created by deed, indenture or other instrument,” and appoint a new trustee, with all the powers and duties of the original trustee; “such new trustee giving the like bonds and security as are required, if any, by the deed, indenture or other instrument creating the trust estate.” This statute had no application to trustees originally named in a will or deed, or appointed to fill a vacancy arising from any other cause than removal by the court. In a case within its provisions, a bond must doubtless be deemed to be “required by the instrument creating the trust ” when required either by the very terms of [344] the instrument, or by the general provisions of law applicatle to the case. Assuming the word “instrument ” to include a will, the effect would he that a new trustee under a will, appointed pursuant to this statute, must give bond if required to do so by the terms of the will; if not required to do so by the terms of the will, he must still give bond if appointed by the judge of probate, because the Revised Statutes expressly so provided; but if appointed by this court, and not required by the terms of the will to give bond, then, as there was no statute requiring a bond in such a case, he need not give one, unless ordered to do so by the court in the exercise of its equitable discretion. The General Statutes of 1860 reenact the provisions of the Revised Statutes requiring any trustee appointed by the probate court under a will to give bond, unless exempted by the testator or by consent of all persons interested. Gen. Sts. c. 100, §§ 1, 2, 4,11. By § 9 the jurisdiction of the probate courts, concurrently with that of this court, to appoint new trustees, is extended to cases of any vacancy, from whatever cause arising; and it is provided that “such new trustee, upon giving the bonds and security required,” shall have the same powers, rights, duties and.estate as if originally appointed. No bond being required of the trustee appointed by this court, either by the terms of the will, or by the provisions of the statutes, or by the decree appointing him, his omission to give bond for the performance of his trust does not impair the validity of his conveyances under which the tenants derive their title. Judgment affirmed.