Potter's Appeal from Probate

Park, C. J. Mr. Potter, the original appellant, was executor of the will of Ezra Curtis, and in that capacity had in April and July, 1882, a large sum of money in his hands for payment to the legatees under the will. The legatees were Mary E. Curtis, the widow, and George E. Curtis, his son and only child, then twelve years old, of whom the widow was the legally appointed guardian. In paying over — 13 — portions of their shares to the widow on her own account and as guardian of her son, he advised her to take, and she, relying upon his advice and recommendation, took for herself one hundred shares of the Housatonic Rolling Stock Company at fifty dollars a share, coming to $5,000, and Missouri farm mortgages to the amount of $1,961.55, and as guardian of her son one hundred shares of the Housatonic Rolling Stock Company, at the same price, coming to $5,000, a thousand dollar bond of the Atchison & Pike’s Peak Railroad Company at its face value, and Missouri farm mortgages to the amount of $1,970.34, making a total for herself of $6,961.55 and as guardian of her son of $7,970.34. For these two sums Mr. Potter credited himself in his account with the estate as executor, and presented the items for allowance by the probate court in a partial account rendered on the 14th of June, 1884, which account was accepted by the court. In 1ns final account as executor, rendered to the probate court on the 22d day of March, 1886, these items were objected to by the widow on her own account and as guardian of her son, and were disallowed ■ by the court. From that disallowance Mr. Potter took the present appeal to the Supérior Court, winch affirmed the probate decree in part and in part disaffirmed it, and from that judgment both parties have appealed to tins court. The court below made a finding of the facts in the case, from which it appears that Mrs. Curtis, the widow, prior to her husband’s death had had no business experience whatever ; that friendly relations had existed between .her husband and Mr. Potter, of which she had known, as well as the fact that he had selected him for his executor ; that she did not in any respect assume the management of the estate or direct as to investments of it, but relied entirely upon Mr. Potter, and assented to and accepted such investments as he recommended; and that she had no knowledge that Mr. Potter had any interest in her making the investments that have been mentioned, and that- she would not have assented to them if she had known their character and that they were not securities in which'she could lawfully invest — 14 — funds held by her as a guardian, but that she relied in the matter upon Mr. Potter’s advice and recommendation and upon his relations to the estate. Here we have then a widow, utterly ignorant of business, confiding in one whom she had known as her husband’s personal friend and whom he had trusted with the settlement of his estate, and acting upon his advice, supposing, as she had a right to do, that he was disinterested in that advice and was acting solely in her interest, and giving her the benefit of his experience and intelligence, with the most friendly interest in her welfare. He on his part stood in a position, as executor of her husband’s estate and, as such, a trustee for the legatees under his will, and as the recipient of her confidence and trust with regard to her business affairs, that imposed upon him the obligation of the highest' fidelity to her interests, and rendered impeachable in equity any transaction into which she might be led by any want of such fidelity on his part. How what do we find the actual fact to be? The stock of the Housatonie Rolling Stock Company was a speculative stock, of the character or value of which it is found that Mr. Potter knew nothing, except that it was largely invested in by prominent and responsible citizens of Bridgeport and that it was at that time paying good dividends, and that the manager told him it would continue to do so, and that he'Sought no further information on the subject. It is found however that it was not an incorporated company but was managed as an unincorporated association entirely by one Hurd. This is a fact that Mr. Potter, himself a stockholder, could easily have ascertained, and was bound to have ascertained before assuming to advise an investment in it by Mrs. Curtis, who as a stockholder might be held in law a partner and so might be subjected to great and perhaps ruinous loss by its insolvency. As a matter of fact the company paid dividends but two years longer, and at the time of the trial the stock was worth only from $5 to $7 a share. We have then, thus far, conduct on the part of Mr. Pot — 15 — ter that is really inexcusable in his advising Mrs. Curtis, to whom he stood in such a relation of confidence, to invest in such a precarious stock, and it is a serious question whether, if this were all, the transaction could stand in equity. But there is a further feature of the case that places the invalidity of the transaction beyond question. It is found that at the time of these transactions Mr. Potter was and for some time had been, agent for Hurd, the manager of the Rolling Stock Company, for the sale of the stock, and that he was allowed a commission of twenty per cent, on the sales which he effected, and that he in fact received $2,000 for the sale of the two hundred shares which he sold for $10,000 to Mrs. Curtis for herself and as guardian of her son. It further appears that instead of Mrs. Curtis seeking his advice, he took the initiative, and sought an interview with her, inviting her to his house at dinner (stating that he had funds of the estate in liis hands, but was not well enough to go to see her), and at the interview there he advised her to take this stock as an investment, which she finally did, in entire ignorance that he had an interest in effecting the sale. It is true his interest was only to the amount of twenty per cent, of the stock, and the claim is made that for the other eighty per cent, the sale was good, and he liable to make good only the actual profit that he received. But this is a very narrow view of the matter. His interest in making the sale characterized and vitiated the whole transaction. It became as a whole a breach of confidence, an abuse of trust. The matter is not to be measured by the measure of his interest, but is characterized throughout by the vicious ingredient that entered into it. 2 Pomeroy’s Eq. Jur., § 902, and cases cited. And the same reasons that invalidate this transaction apply to the sale to her of the farm mortgages. Mr. Potter had the same interest, as an agent selling upon a commission, in this transaction as in the one we have considered. His advice was not disinterested, nor such as in the circumstances she had a right to expect and require. The property in this case does not appear to have depreciated, but — 16 — her 'right to repudiate the transaction does not rest upon a depreciation of the property, but on Mr. Potter’s concealed interest in the sale. But the mortgages were in fact securities which as a guardian Mrs. Curtis had no right to invest in, and in which it was not wise that she, a woman, ignorant of business, with whom the great point of consideration must have been safety of investment, should invest her means, and which he, as her confidential adviser, ought never to have recommended to her for that purpose. As the case stands thus far both the transactions by which the Rolling Company stock and the mortgages were sold to Mrs. Curtis are open to arraignment in equity, and would be condemned by its well settled principles. And it is to be observed that courts of probate, though not properly courts of equity, have full power to apply equity principles in dealing with cases like this ; so that the question before the probate court in this case was precisely the same as if it had been brought before a court of equity by a direct proceeding. But the counsel for Mr. Potter say that there was no fraudulent intent on his part, and appeal to that part of the finding which states that he “ believed that all the statements made by him to Mrs. Curtis concerning them (the stock and securities) were true, and that they would be a safe and profitable investment for her and her son.” But it is not enough that he believed his statements to be true. In the relation in which he stood to her he ought to have known them to be so or not to have made them. It appears that he knew the speculative character of the Rolling Company stock and that there was no legal organization. And more than all, he knew that he was concealing from her his personal interest in the sales, a fact which would have prevented her accepting the property if she had known of it. If the case can be regarded as not one of actual fraud, yet it clearly is one of constructive fraud; of fraud inferred by the law. Such a fraud will be inferred in cases where a confidential relation is used to accomplish a transaction that is injurious to the trusting party, even though there be no — 17 — actual fraudulent intent. 1 Story Eq. Jur., §§ 307, 308, 811. As to Mr. Potter’s belief in the truth of his statements, it is to be noticed that with his very limited, and as far as it went not very favorable knowledge of the affairs of the Rolling Stock Company, he “sought no further information on the subject.” He therefore made his statements knowing that they were very hazardous ones. In Evans v. Edmunds, 13 Com. Bench, 777, Maule, J., lays down the rule on this subject as follows:—“ I conceive that if a man, having no knowledge whatever on the subject, takes upon himself to represent a certain state of facts to exist, he does so at his peril: and if it be done either with a view to secure some benefit to himself, or to deceive a third person, he is in law guilty of a fraud, for he takes upon himself to warrant his own belief of the truth of. that which he so asserts.” And Pomeroy, in his Equity Jurisprudence, vol. 2, sec. 885, says:—“ A person making an untrue statement, without knowing it to be untrue, and without any intention to deceive, may be chargeable with actual fraud in equity.” It is then said that Mrs. Curtis had no right to retain the stock and mortgages so long and ought to have tendered them back if at all long before she did. Of course she was bound to repudiate the transaction within a reasonable time. Like all persons who appeal to equity for aid, or who seek to apply its principles for their protection, she had no right to sleep upon her rights. It is found that she tendered the stock and mortgages back, with all the dividends and interest received, in January, 1885, nearly three years after she took them. But it is also found that she then for the first time learned that he had received commissions for the sale of them. This was the point which was decisive as to the invalidity of the transactions, and the discovery of it gave her the right to repudiate the purchase. It surely does not lie in the mouth of Mr. Potter to complain that a decisive fact, which he concealed, was not sooner discovered by her, or that action which was predicated upon and justified by that fact was not sooner taken. — 18 — It is then said that these transactions, even if fraudulent, either in fact or in law, were wholly outside of Mr. Potter’s relation to the estate as executor, and were merely between him and Mrs. Curtis, and if to be assailed at all that they are to be assailed by her by some proceeding of her own, and subjecting him personally if at all, and not as executor of Mr. Curtis. The idea here seems to be that Mr. Potter had completed his duty as executor in paying over the money to Mrs. Curtis, and that her use of the money was wholly her own matter, and so far as she acted under his advice, it was his individual advice and not his as executor. If the facts were as claimed it would yet not deliver Mr. Potter from personal responsibility to Mrs. Curtis. The confidential relation might continue to exist after the official relation had ceased. A guardian might, on the ward’s becoming of age, have paid over to him in cash, or delivered to him in specific property of the estate, all that he held as guardian, and have obtained a discharge from his guardianship by the court and a receipt in full from the ward; and yet if the ward a few days later had asked his advice as to the investment of his money the confidential relation would ordinarily have continued to exist, and any abuse of the ward’s confidence by which the late guardian had promoted his own interest and brought loss upon the ward, would have been a transaction that a court of equity would set aside. This Mr. Potter’s counsel would not deny, but they say that as in the case supposed the guardian would no longer be liable on his bond, but only upon a suit of the ward against him, so here, Mr. Potter would be liable, if at all, only to Mrs. Curtis personally, and not for a breach of his bond as executor, or upon objection made to an allowance, of his administration .account. But the facts do not at all bear out this claim. Here the money was not paid to Mrs. Curtis, but she was paid in these stocks and securities. She was of course entitled to payment in money. This is not only clear as a matter of law, but it is found that “ Mr. Potter knew that .as executor he ought to pay the legacies in cash.” His pay — 19 — ment of her by check payable to her order was not only a mere form, but it is found that he took a receipt from her for cash because he knew that it was his duty to pay her in cash. In the case of the sale of the stock to her as" guardian he did not even resort to this form of payment, but made his check payable to Hurd and procured from him and delivered to her a certificate of the stock, taking from her a receipt for a payment in cash; the court finding that he drew the check to the order of Hurd and not to her order because he thought it would be “ a useless formality.” It is clear that the payments to her on her own account and as guardian were in these stocks and securities, and not in cash which she afterwards invested in the stocks and securities on his advice. We ought perhaps to notice the point made by Mr. Potter’s counsel, that Mrs. Curtis was not acting upon his advice alone, but that he advised her to consult her uncle, Mr. Bishop, and Mr. Lockwood, and that she did in fact consult Mr. Bishop. It does not appear what advice he gave her, nor whether any. The fact of Mr. Potter’s advising her to consult these gentlemen should be set down to his credit upon the question of fraudulent intent on his part, but even if it be regarded as disproving such intent it could not operate to disprove a constructive fraud. The transactions would still be open to a fatal objection. But it is not clear that the fact is of any great valué upon the question of actual fraud. The court has not found that Mrs. Curtis was in any manner influenced by Mr. Bishop’s advice, if indeed he gave her any, but has found expressly that Mr. Potter “induced” her to take the stock and securities, and that she took them “relying upon his advice and recommendation and upon his relation to the estate.” We cannot regard the case therefore as materially affected by the fact that he advised her to consult these two gentlemen and that she did in fact consult one of them. We have thus far considered only the sales of the stock of the Rolling Stock Company and of the mortgages. It — 20 — does not appear from the finding that Mr. Potter received any commission for the sale of the railroad bond, nor indeed who owned the bond, nor that the sale was not a fair one. It is true that it was not a security in which Mrs. Curtis had a right to invest the guardian funds in her hands, and Mr. Potter, if he knew that fact, did a blameworthy act in advising such an investment. But there appears no reason why, if she had desired to repudiate the transaction, she should not have tendered back the bond before she did. The long delay in the other cases was excused by her ignorance of his concealed interest in the sales, but no such interest appears to have existed in this case, and we think that, even if the transaction was one which she would have had the right to repudiate if she had acted seasonably, she had lost that right by her delay. The point was made before the probate court that the question as to the disallowance of these items of credit, was no longer an open one, by reason of the account personally rendered to and accepted by the court, in which these items were embraced. It appears that this account was rendered on the 14th of June, 1884, the final account from which the appeal is taken having been rendered on the 22d of March, 1886. The former accounting was a partial one, and was made without the presence of or notice to the parties in interest, and was not otherwise passed upon by the court than by its acceptance of it. In these circumstances it is very clear that the question as to the allowance or disallowance of these items was in every respect an open one on the final accounting. Mix’s Appeal from Probate, 35 Conn., 121; Clement’s Appeal from Probate, 49 id., 520. There was error in the judgment of the Superior Court in reversing so much of the decree of the probate court as disallowed as credits in the administration account of Mr. Potter the items pertaining to the sales of the Rolling Stock Company’s stock and the farm mortgages to Mrs. Curtis, and to her as guardian; and no error in the affirmation of that part of the decree of the probate court which disallowed as — 21 — credits the amount which he received as commissions on those sales. In this opinion the other judges concurred.