Prindle v. Holcomb

Carpenter, J. This is an action on a probate bond conditioned that the defendant Holcomb, as a testamentary trustee, should faithfully discharge the duties of the trust, alleging a breach, &c. The facts were found by a committee, and the — 118 — question as to what judgment shall be rendered upon the facts was reserved for the advice of this court. 1. The defendants object that the plaintiff cannot recover for the reason that the action was brought without first obtaining the consent of the court of probate, given upon the written application of the party interested. This is required by statute, Revision of 1875, p. 400, sec. 18. By the margin it would seem that it was enacted by the legislature In 1874, but we are unable to find any such statute in the session laws of that year. As it does not previously appear we infer that it was inserted in the revision by the revisors, and became law only by force of the act adopting the revision. We think it is quite clear that it could have no force prior to January 1st, 1875, when the revised statutes took effect. This suit was brought in August, 1874, and was well brought as the law then stood. But if it be conceded that the law was then in force, we think it cannot be taken advantage of at this stage of the cause. It should have been pleaded in abatement. Not so pleading it, but taking the chances of a favorable result of atrial upon the merits, the defendants waived the objection. 2. An objection is made to the admission of evidence on the ground of a variance. The bond described in the declaration was given by the defendants conditioned that the defendant Holcomb, trustee under the last will and testament of Sally Deming, should well and truly execute said trust according to law, &c. Under this declaration the committee received proof that the defendants, in the year 1868, executed a bond to the judge of probate, as sureties of John H. Scott, trustee under said will, that said Scott converted the trust fund to his own use, that he died April 30th, 1871, insolvent, that the amount of the trust fund was then $1,921.23, that he defendant Holcomb was subsequently appointed trustee and presented a claim against the estate of said Scott for the amount of said trust fund and received thereon a dividend amounting to $134.48, that he did not otherwise receive any of the trust fund, and that the defendants are abundantly able to respond to the obligation imposed upon them by said bond. — 119 — We think this evidence was admissible for the purpose of proving a breach of the bond in suit. It established the fact that Holcomb as trustee had a claim against himself as an individual and the defendant Herman, and that both himself and Herman were able to pay it. That it was his duty to collect the same cannot be questioned. It was not necessary that lie should sue himself and his co-surety and obtain judgment, nor was it necessary for him formally to set apart the money or other property as the trust fund. If he did nothing of the kind he in effect assumed the liability and charged, himself with the annual interest. There was so much money due on Scott’s bond, and nothing more could be collected of his estate. The balance was collectible of the sureties, and a reasonable time for payment had elapsed. As one of the sureties had been appointed trustee and had accepted the trust the money was payable from him as an individual to himself as trustee. Under these circumstances it will be considered and treated exactly as if the money was in Holcomb’s hands as trustee, and the law will charge him with the interest-accordingly. Davenport v. Richards, 16 Conn., 310, is a case directly in point. 3. It is next objected that the defendant Holcomb has never been cited to render an account to the court of probate, that he has disobeyed no order of that court, and that the probate records do not show any official misconduct; therefore it is claimed that the defendants cannot be made liable in this action. If the plaintiff relied upon the defendants’ failure to .comply with some order or decree of the court of probate as the breach of the bond for which he claims to recover, there might be some force in this claim. But that is not the ground of the action. It will be noticed that the condition of the bond is that the trustee “ shall well and truly execute said trust according to law, the provisions of said will, and orders of court.” The law requires him to render to the court, of probate an annual account. This he has not done. It is no excuse*that the court has not directed him to do it. No order of the — 120 — court requiring Mm to perform tMs duty is necessary. Tlie statute itself is a standing order. It is true the language of the act as it now stands is that “courts of. probate shall require all guardians, &c., to render an account;” but that is to be interpreted, not as making the duty of the trustee contingent upon a prior order of court, but as requiring the court of probate to enforce this duty by removal if need be. This is obvious from the fact that in all cases where the estate is more than five hundred dollars the duty is imperative to render an annual account; when it is less an account is to be rendered only when required by the court of probate. It is further apparent from the language of tlie act as originally passed in 1853, which is that all guardians, trustees, and conservators “shall annually render their respective accounts, &c.” The will of Sally Deming requires the trustee to pay over annually to Charles D. Deming the interest and avails of the trust estate. This he did not do, and this is the principal breach assigned. This duty is imposed by the will. An order from the court of probate directing performance will not strengthen the duty and is unnecessary. 'Withholding an order or even prohibiting performance will not release the obligation. Moreover, where prior orders are necessary, as in cases of distribution, there it is the duty of the executor, administrator or trustee, as the case may be, to procure such order. His failure to do so is itself a breach, and will not excuse any further neglect of duty. This objection to the plaintiff’s recovery therefore ought not to prevail. 4. The next and last objection is, that the court of probate has sole and exclusive jurisdiction to settle the trustee’s account, and that until found in default by that court he cannot be made accountable in an action on his bond. This objection assumes that the object of the suit is to compel the trustee to state his account. The defendants’ counsel in their brief state it thus: “ Upon the trial of this case the plaintiff sought, not to make the defendants liable for any ascertained default, but to state the trustee’s account.” This is not an accurate and full statement of the object of — 121 — this suit. It is true the omission of the trustee to render an account of his doings with the trust estate, is alleged, iiiferentially at least, as a breach of the bond; but there is a more important breach directly and explicitly alleged, and that is, his neglect to pay over to Charles D. Deming the interest and avails of the trust property. To compel such payment we regard as the object of the suit. In order to recover the plaintiff must prove the bond, the breach, and the damage. The damage is proved by showing the amount of the trust fund — it being the same as money in this case — and the law charges him with the interest. Strictly speaking it is no part of the plaintiff’s case to show the state of the trustee’s account. If the trustee desires to reduce the damages, it is incumbent on him to show his disbursements and the value of his services. If, as he now claims, he cannot do it in this action, it is his misfortune. He, and not the plaintiff, should suffer. Had hé done his duty and rendered his account the probate records would have shown the true state of his account. He cannot now take advantage of his neglect to do so and set it up as a defense to this action. But we regard the matter of stating an account as a mere incident, and that it is competent to state it in this action, so far at least as may be necessary to ascertain the just amount of damages. The cause is unquestionably within the jurisdiction of the Superior Court. That there has been a breach of the bond cannot now be denied. It would be almost an absurdity to hold that the court cannot lawfully determine the amount of damages. There may be cases in which some finding or decree of the court of probate will measure the damages to be recovered in the Superior Court in an action on the probate bond. But in such cases generally, if not always, it will be found that the probate decree is essential to establish the liability, as well as the damages, without which there is no breach; as where an executor or administrator refuses to pay over a distributory share of an estate, or, in the case of insolvent estates, to pay the amount due creditors. In this case the liability is susceptible of proof without an order of court. The liability being fixed the question of — 122 — damages alone remains. The court before which the action is pending must necessarily have the power to determine that question unless there is something in the nature of the case or in the provisions of the statute which confers jurisdiction of that question upon some other tribunal. There is no inherent difficulty in determining it before the, Superior Court, and no special reason why it should be done by the court of probate. The argument of the defendants assumes that testamentary trustees stand upon the same footing with executors and administrators. Executors and administrators are charged with the duty of settling estates, over which courts of probate have sole and exclusive jurisdiction. It is important that the probate records should show all the proceedings relating to such settlements; hence the propriety and necessity of requiring administrators’ accounts to be settled in that court. But with testamentary trustees it is different. Ordinarily they take the trust property after the estate is settled and distribution or a partial distribution is made, and hold it for the purposes of the trust. These trusts are created by will, and the relations existing between the trustee and the cestui que trust are not essentially different from those existing in cases of ordinary common law trusts. Over such trusts courts of probate will exercise no jurisdiction except as it is conferred by statute. Oases of testamentary trusts probably were not frequent prior to 1822, as we find no reference to them in the statutes before that year. Such as may have existed were doubtless regulated and controlled by the General Assembly, or by courts of equity after equity powers were conferred upon the courts in 1778. In 1822 a statute was passed providing that, in case of the death or incapacity of a trustee appointed by will, or of his refusal to accept, the court of probate “ shall appoint some suitable person or persons to execute said trust according to the will, taking from them good and sufficient bonds with surety conditioned for a faithful performance thereof.” Thus the law stood until 1831, when courts of probate were authorized to remove trustees for cause; and in 1832 an act was passed regulating proceedings upon the resignation of trustees and — 123 — providing for the appointment of others in their stead. The next change made was in 1853, when the act was passed requiring trustees, conservators and guardians to render annual accounts to the court of probate. Under the statutes in force prior to 1853 it will hardly be claimed that a settlement of the trustee’s account in the court of probate was essential to the maintenance of an aclion on his bond. No sucli settlement was provided for by statute, and probate courts had no such power unless it existed previous to the statutes. That it did not previously exist is apparent when we consider that it is essentially an exercise of chancery powers and glance at the history of courts and equity and probate jurisdiction in this state. The “General Court” had sole jurisdiction of equity causes until 1778, when jurisdiction was conferred upon the county courts in all matters not exceeding £200, and upon the Superior Court in all matters exceeding £200 and not exceeding £800, reserving to the General Court jurisdiction in all matters above the latter sum. Courts of probate, as separate tribunals, were first constituted in the year 1698. In the early history of the colony the ordinary courts of justice — the “Particular Court” or “Court of Magistrates,” as it was sometimes called, entertained jurisdiction of “Wills and Inventories.” In 1666 counties were organized and probate jurisdiction was conferred upon the county courts. Col. Records, Yol. 2, pages 34-39. In 1698 the judge of the county court, with two justices of the quorum, were constituted a “court for the probate of wills, granting administration, and appointing and allowing of guardians, with full power to act in all matters proper for a prerogative court.” Col. Records, Yol. 4, page 268. In 1699 (same volume, p. 307,) courts of probate were authorized to call administrators to account “ for and touching the goods and estate of such deceased person.” In 1784 that provision was extended to executors, and has remained a part of the statute laws of this state until this day. Revision of 1875, p. 393, sec. 32. As thus constituted courts of probate were courts of special and limited powers, and had such jurisdiction only as was — 124 — expressly conferred by statute. If an express statute was required to authorize them to call executors and administrators to account, it will not be presumed that they had powers to call testamentary trustees to account in the absence of any such statute. If equity jurisdiction was so sparingly conferred, and to a limited extent only, upon the higher courts, it affords strong reasons for presuming that courts of probate did not exercise such jurisdiction without express authority. It follows that the court of probate had not jurisdiction of the settlement of Holcomb’s account as trustee unless such jurisdiction was conferred by the act of 1853. That act requires all guardians, trustees and conservators annually to render an account for the year next preceding, embracing therein an inventory or schedule of the estate held by them, the estimated value of the same, the amount of income, interest, issues and profits thereof during the year, and the amount paid or proposed to be paid for the support of, or as dividends to, or for the person or persons for whose benefit the estate is held. Such accounts are to be sworn to, and a neglect or refusal to render the same is to be deemed a refusal to perform the duties of the trust. It will be noticed that the language of this act refers to an annual account to be made to the court of probate, and not to a final settlement with the person or persons ultimately entitled to the trust fund or the income therefrom. There is no provision for notice to other parties interested, none for enforcing any order or decree, and indeed none for compelling any account to be rendered. It is apparent therefore from what the act says and from what it omits to say, that the legislature did not contemplate by the account required a final and conclusive determination of the lights of the parties. Suppose the trustee had rendered his account and had omitted from the inventory or schedule some item of the trust property, or had neglected to charge himself with some portion of the income received; the acceptance of his account by the court would be no defense to an action on his bond to recover the value of the property so omitted. That was held in the case of an executor even after there had been a final — 125 — settlement of liis administration account. Moore v. Holmes, 32 Conn., 553. Suppose he had credited himself with a sum of money paid to the person entitled to the income which in fact was never paid. For the same reason and upon the same principle he would still be liable therefor on his bond. Suppose further that he should refuse to render any account; what power has the court of probate except to declare the trusteeship vacant and appoint another in his place? In that event what remedy has the cestui que trust, if the theory of the defendants is correct, that his account can only be settled in the court of probate ? These reasons seem to us sufficient to justify the conclusion that the accounts required by the act of 1853 do not conclude the parties, and that there is little or no room for inferring that the court of probate has power to settle the final accounts, and determine conclusively the rights of trustees and parties interested -in the trust estate. The Circuit Court of the United States, in this district, took the same view of the statute under consideration. Parsons v. Lyman, 32 Conn., 566. It is competent therefore for the Superior Court to determine the question of damages in this action. We see no reason for sanctioning the claim of the plaintiff that he is entitled to recover the interest accruing since the commencement of this suit, as this is not a final settlement of all matters between the parties. We advise the Superior Court to render judgment for the plaintiff for the amount of interest due at the time this suit was commenced. In this opinion the other judges concurred.