Dewey v. Burke

Jenney, J. The questions involved relate to an account of the trustee appointed by the Probate Court for Worcester County under the will of Mary B. Defose. The case is here upon appeals from a decree confirming the report of a master and settling the account. The trustee is charged with $3,900 because of his failure to exercise due care and diligence in the management of the trust; the appellants contend that this amount should be largely increased. It is unnecessary to recite the facts; the master, without any report of ,the evidence, found that the loss because of shrinkage which ought to have been avoided in the value of the real estate held in trust was $2,500. As the subsidiary facts determined are not inconsistent with this conclusion, it must be upheld. Fuller v. Fuller, 234 Mass. 187. The same result follows as to the loss of income caused by negligence of the trustee, because of which he has been charged with $1,400. The report shows no basis for a different result. The conclusion of the master that interest should not be charged against the trustee, apparently because of these losses, ought not to be reversed. The trustee has been charged with all moneys actually received and all losses due to his mismanagement. Moreover, the report furnishes no sufficient basis for such computation, and the trustee [438] made large advances from time to time from Ms personal funds and did not make any charge for interest. The -will provided that after the death of the husband of the testatrix, the trustee should pay to Grace Mabel Mills “ During her life all the net income of said estate from time to time as the same may accrue,” and further “ If at any time for any cause my Trustee shall determine that the net income of said estate is not sufficient for the proper and comfortable support and maintenance of my said niece, Grace Mabel Mills, and her cMldren (if she shall have any) my Trustee may with the approval of the Judge of the Probate Court for the County of Worcester, pay to my said Mece, Grace, from the principal of said estate from time to time as may be best for her maintenance and support.” Except as hereinafter stated, no approval has been sought or given for any payment from principal for maintenance and support. However, the trustee has permitted the beneficiary, whose name by marriage is Burke, to receive and use rentals of the property held in trust in excess of the balance, above the amounts required to defray interest on a mortgage and for taxes, thus in effect charging such excess upon the corpus of the trust, and has paid to her other moneys. His account includes an item of charge of $3,601.78 against the principal as paid to Mrs. Burke for maintenance and support. This was allowed by the judge of the Probate Court after hearing. The master allowed the payments and found that they extended over a period of substantially twelve yéars, and that they were not excessive in amount, considering the needs and lack of other resources of Mrs. Burke. It is now urged- that the will absolutely requires the approval of the judge of probate before making such payments. Undoubtedly the proper procedure would have been to obtain the approval of the judge before making the payments. The advancements were made at the risk of failure to secure it, and might have resulted in a permanent depletion of the trust. The provision clearly was created for the protection of persons whose rights might be affected and to prevent action without proper deliberation and independent [439] and unhampered approval. But the will does not in terms require the prior action of the judge. Lumbert v. Fisher, 245 Mass. 190. In the first instance the trustee was to determine whether a necessity existed. Sanction of the judge was not strictly a condition to the exercise of the power. The approval under the terms of this trust could be given after the advancements were made, and the allowance of these items of the account constituted a sufficient approval. Emery v. Batchelder, 132 Mass. 452. See Libby v. Todd, 194 Mass. 507; Rhines v. Wentworth, 209 Mass. 585; Thompson v. DeVisser, 219 Mass. 40. The judge of the Probate Court was the person designated in the will to act in the premises (see Shaw v. Paine, 12 Allen, 293; National Webster Bank v. Eldridge, 115 Mass. 424) and the propriety of the payments has also been upheld upon appeal. The remaining exception to the master’s report relates to the allowance of the trustee’s compensation: it is not argued and is treated as waived. Decree affirmed.