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equity require it and such creditor is not charge of culpable neglect. That was evidently able with culpable negligence in not prose

the ground on which the case of the Powow cuting his claim. Complainant, having been

River Nat. Bank v. Abbott, supra, was decompelled to take up notes indorsed for testator, was informed by the executors that the personal cided as shown by the cases cited in the property was insufficient to pay the debts and first paragraph of the opin'o and by the was requested by them not to bring suit, in

reasoning of the court. order that the real estate might be sold at pri

It is plain, we vate sale to increase the assets, from which the

think, that justice and equity require that executors promised to pay complainant's claim. the plaintiff should have the relief which Thereafter, and before the two years expired, he seeks. "The statute is remedial * the executors sold the real estate under a license from the probate court, of which complain

and its operation is not limited to cases ant was not informed until after the two years

where the failure to sue seasonably was had expired, and on a bill subsequently filed the due to such fraud, accident or mistake as court found that the complainant had not been

would be ground for equitable relief if there guilty of culpable negligence in not previously instituting suit. Held, that complainant was

were no such statute." Ewing v. King, 169 entitled to equitable relief notwithstanding the Mass. 97, 102, 47 N. E. 597. The plaintiff delay.

indorsed, for the accommodation of the de[Ed. Note.—For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, $

fendant's testator, notes, the renewals of 1764.]

which cane due after the testator's deata 2. SAME-EXECUTORS' GOOD FAITH-MUTUAL

and which the plaintiff was obliged to take MISTAKE.

up and on which there is a balance now The fact that the executors acted in good due him of upwards of $1,700. The personfaith, and that by mutual mistake both they

al property belonging to the estate was not and complainant believed that if complainant brought suit he could force a sale of the land,

sufficient to pay the debts, but there was and that the balance due complainant could be

real estate available for that purpose. The paid at any time, whether action was brought defendant Widger with the knowledge of or not within two years, did not establish as a

his coexecutor represented to the plaintiff matter of law that complainant was guilty of culpable negligence or that equity did not re

that if a sale of the real estate were forced quire payment of his claim.

there might not be enough to pay the debts [Ed. Note.—For cases in point, see vol. 22, and that if the sale was not forced and the Cent. Dig. Executors and Administrators,

proceeds were sufficient the plaintiff's debt 1764.]

would be paid out of them. And he urged Appeal from Supreme Judicial Court, Nor the plaintiff not to bring suit and to perfolk County.

suade the bank which held the testator's Bill by John McMahon against Rosina B. original notes not to do so. The plaintiff, Miller and others, as executors of the estate who had been a warm personal and business of Amos H. Miller, deceased. A decree was friend of the testator, forebore to bring suit, rendered in favor of defendants, and plain- and persuaded the bank also to forbear. tiff appeals. Reversed.

Subsequently and before the two years exJohn E. Hannigan and Isidor Fox, for

pired the defendants, acting under a license appellant. Jos. O. Burdett, for appellees.

from the probate court, sold a part of the

real estate and realized therefrom $6,000. MORTON, J. This is a bill in equity for The plaintiff was not informed of this sale, relief under Rev. Laws, c. 141, § 10. The and the defendants left him in ignorance presiding justice ruled on the facts found of it, and he did not learn of it till after by him, that the plaintiff had not been guil the two years had expired. The finding ty of culpable negligence, but ruled that that the plaintiff was not guilty of "culpable there was a mutual mistake of law on the negligence" must be taken to include, we part of the plaintiff and defendants and think, a finding that there was no neglithat the plaintiff was not entitled to relief gence on his part in failing to ascertain under Rev. Laws, c. 141, § 10, as interpreted the facts with regard to the sale of the by Powow River Nat. Bank v. Abbott, 179 real estate. The fact that after the repreMass. 336, 60 N. E. 973, and d'smissed the sentations made by them the real estate bill with costs. The plaintiff appealed. was sold by the executors before the two

We think that the decree dismissing the years expired and that the sale was not bill was wrong, and that the plaintiff is en made known to the plaintiff and he did titled to the relief which he seeks. We treat not learn of it till after the two years exwhat is called a ruling as in effect a finding pired, also distinguishes this case from the that the plaintiff was not guilty of culpable Powow River Nat. Bank V. Abbott, supra, neglect which are the words of the statute and the cases referred to in the opinion in and as intended to express the conclusion that case, and renders it more analogous to which the presiding justice came on that to Ewing v. King, supra, Morey v. American

Loan & Trust Co., 149 Mass. 253, 21 N. E. the facts as found by him. That finding | 384, and Knight v. Cunningham, 160 Mass. distinguishes this case from most if not all 580, 36 N. E. 466. The fact that the execuof the previous cases which have arisen tors acted in good faith, as it is found that under this statute. In those cases it was they did, and the further fact, which is found or ruled tort the plaintiff was guilty also found, that they and the plaintiff were

question on the evidence before him and Lo

mutually mistaken in believing that by bring Chas. E. Rushmore, for Jas. C. Jordan. ing action a sale of the land could be Roger F. Sturgis, for guardian ad litem. forced, and that the balance due the plain Chas. K. Cobb, for executors and trustees. tiff could be paid at any time, whether action were brought or not within the two BRALEY, J. By the will of the testator years, do not, it seems to us, affect the after devising in article 5 his mansion house right of the plaintiff to relief, even if we to his wife, the residue of the estate consistassume that such mistaken beliefs consti ing of real and personal property to a large tuted a mistake of law, and entered into amount is given to trustees "in trust to manthe conduct of the plaintiff. They do not age and invest the same in a careful and show, as matter of law, that he was guilty prudent manner, and receive the income of culpable neglect, or that justice and equi- therefrom, and after deducting and paying ty do not require that his claim should from said income all taxes and other charnot be paid. There being no culpable neg ges incidental thereto including a reasonable lect on the part of the plaintiff and justice compensation to the trustees

*

to and equity requiring it, it follows that the pay to my said wife out of the remainder of

plaintiff is entitled to judgment for the said income, if she shall survive me, the · balance due him.

yearly sum of twenty-five thousand dollars Decree reversed and case to stand for

during the term of her natural hearing to determine the amount due the life.” He then proceeds, subject to this proplaintiff and judgment to be entered accord- vision, to provide for his four children and ingly.

their issue, which as to his son James inSo ordered.

cluded only the children by his first wife, by further directing the trustees “to divide

all said rest, residue and remainder of said (192 Mass. 337)

estate and property

* into such a JORDAN et al. V. JORDAN.

number of equal shares that there shall be (Supreme Judicial Court of Massachusetts. one share held in trust for the benefit” of Suffolk. June 20, 1906.)

each of them. Upon such division being 1. TRUSTS-ADMINISTRATION-CHARGES-PRIN

made it then becomes the duty of the trusCIPAL OR INCOME. Where a building belonging to a trust es

tees “to manage such general share in a caretate was altered in the basement, first story, ful and prudent manner, and invest from and other parts by providing an elevator, build time to time in a careful and prudent maning a stairway, and other minor changes, and furnishing additional equipment for lighting,

ner such part thereof as may be uninvested, heating, and plumbing, for the purpose of se

and collect and receive the income from such curing tenants or for their accommodation, general share, and after paying from the inwhereby the rental value of the building was come of such general share all taxes and other increased, it was within the discretion of the

charges incidental to such general share, intrustee to charge the expense so incurred to the income, rather than to the principal, of the cluding a reasonable compensation to the trust estate.

trustees for the time being for their services [Ed. Note.-For cases in point, see vol. 47, in respect to such general share to pay the Cent. Dig. Trusts, 88 389, 390.]

residue of the income of such general share 2. SAME.

to the son or daughter of mine for whose Under a will directing a trustee to divide

benefit such general share is held in trust." part of the decedent's estate into equal shares in trust for the benefit of certain persons, pro

But it is further provided if the trustees viding that, if such division were inconvenient, find it inconvenient this division need not be it need not be made, but that the proportionate made, and only his or her proportionate share of the income should be paid to each of

share of the income need be ascertained and the persons named, where a part of the estate was unproductive, but was sold at a profit, paid over to the beneficiary. This course the trustee was not required to treat any part has been followed as the trustees thus far of the sum received as income because of the

have treated the estate as undivided. In delay in producing income.

article 16 their discretionary powers are [Ed. Note. For cases in point, see vol. 47, Cent. Dig. Trusts, $$ 383–385.]

defined in those words, "full power and au3. SAME-BROKER'S COMMISSION.

thority are hereby given to the trustees for A broker's commission for the sale of a

the time being under any article of this my parcel of real estate belonging to a trust es will to change from time to time the investtate was properly paid from the income, rather ment or reinvestment of the whole or any than the principal.

part of the property held in trust by such [Ed. Note.-For cases in point, see vol. 47, Cent. Dig. Trusts, $$ 389–392.]

trustees, and for this purpose to sell the

whole or any part thereof at public auction, Case Reserved from Supreme Judicial or by private sale, and for such consideration Court, Suffolk County.

and on such terms as such trustees Action by Eben D. Jordan and others shall deem expedient, and convey the same against James C. Jordan. From a decree al by good and sufficient deed or deeds in fee lowing the accounts of plaintiffs as trustees or other transfers or conveyances to the purunder the will of Eber. D. Jordan, deceased, chaser or purchasers discharged of all trusts, defendant appeals. Case reserved for full and receive the proceeds of such sale, but court. Affirmed.

such proceeds shall be invested

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such other property as they sball deem safe render the whole estate productive, so that and prudent investments, but to be held upon the income could be kept either at a fixed the same trusts. * *

A portion of the standard, or increased in amount. They are personalty has been converted into realty by found by the auditor to have acted in good a purchase of the premises described as the faith, and with reasonable judgment in de"Park Square Tract," and by building an ciding that these changes were advisable. apartment house in "Trinity Court,” and Because of some of these alterations, the while three parcels of real property of which buildings may have been intrinsically more he died seised have been sold, the fee in one valuable than before, and in a certain sense has been acquired under the foreclosure of a they are permanent in character, but already mortgage held by the testator at his death. there has been a partial restoration of one With these exceptions and the transfer in building to its original condition at the escompliance with a contract of the testator pense of capital and what other changes may of certain stares of corporate stock out of be reasonably required in the future to oba large number owned by him, and the liqui. tain and keep tenants cannot of course be dation of his interest in the mercantile firm anticipated. of which he was a member, there appear to In the management of such property dehave been no substantial changes in the form tails of administration must be left very of the property as received by them. The largely to the sound discretion of those inwidow has since deceased, but the children trusted by the testator with its development survive, and from time to time the trustees as a source of revenue, and these disbursehavo rendered accounts of their trust in ments having been found justifiable, the apwhich receipts, expenditures and investments portionment by the trustees so far as they are shown, and while apparently assented are now in dispute does not appear to have to by the other beneficiaries, the appellant, been erroneous. After making an adjustwho originally objected to their allowance ment as to all expenditures which clearly beon many grounds that under the appeal have longed either to capital or income, there rebecome eliminated still claims that the first main those in dispute, and these charges six accounts should be reformed so that cer though debatable they credited to income tain sums credited to income should be char But upon consideration of the principal obged to capital. These objections rest upon ject sought which was to retain or increase two grounds, either that the items now in dis rental values, no satisfactory reason is shown pute for repairs, alterations and improve- why these several outlays should not as a ments were of such a permanent character whole be treated as being in the nature of that they should have been so charged, or occasional repairs, or improvements, which that if the taxes and maintenance of any did not permanently increase the value of separate parcel exceeded the income there the inheritance, but did enhance income, and from, the deficit should not have been finally to the payment of which, capital that already supplied from the general income, but upon had borne what was plainly deemed its prosale of the land should have been taken from portional legitimate part, should not be made principal.

further to contribute. Sohier V. Eldredge, In adapting, after completion, the base 103 Mass. 345, 351; Little v. Little, 161 Mass ment, first story, and other parts of the build 188, 202, 36 N. E. 795. This may be said to ing erected by them, by providing an elevator, be in accordance with the general rule that building a stairway, with other minor chan in the absence of a different testamentary ges, and furnishing additional equipment of direction, or of an agreement as to apporlighting, heating and plumbing, and in re tionment between the tenant for life, and modeling and fitting the third story of anoth the reversioner ordinarily taxes, insurance, er building left by the testator, for the pur and all incidental expenses of the maintenpose either of securing tenants, or for their ance of real property, which forms a part of accommodation, many changes or improve an estate held in trust, whether left by a ments were made, some of which are now testator, or purchased by the trustees are to claimed to have been permanent in character. be paid from income. Parsons v. Winslow, These alterations increased the rental value 16 Mass. 368; Little V. Little, ubi supra; of the property, and if the total cost both of Holmes v. Taber, 9 Allen, 246; New England construction and equipment, of which these Trust Co. v. Eaton, 140 Mass. 532, 4 N. E. items form only a part, come out of the re 69, 54 Am. Rep. 493; Plympton v. Boston maindermen, then as no part of this burden Dispensary, 106 Mass. 544; Howland v. is borne by the beneficiaries for life they Green, 108 Mass. 277; Bridge v. Bridge, 146 would receive a benefit wholly at the ex Mass. 373, 376, 15 N. E. 899. The case of pense of those who ultimately would partici Stone v. Littlefield, 151 Mass. 485, 24 N. E. pate in a division of the estate at the deter 592, which the appellant suggests supports mination of the trust. Under the large dis a different doctrine is not in conflict. In cretionary powers conferred, the trustees, in that case the ordinary rule that taxes should the exercise of a sound business administra come out of income was not followed because tion might find it expedient from time to they had become a lien on the property when time to make extensive alterations in the the trustee acquired title under the foreclosreal property in order to obtain tenants, and ure of a mortgage taken by the testator,

V.

and their payment was necessary before a the same in undivided shares,” which includsatisfactory title could be given to the pur ed these particular investments made by the chaser to whom he afterwards sold. Upon testator, and the cautionary direction found a sale under such conditions capital either in the twenty-fourth article of his will, while receives the benefit of any gain, or must not absolutely binding upon them, is inbear the burden of any loss, and the trustee dicative that he contemplated that his trustherefore, could not at the expense of income tees if they followed his judgment might deretain the amount of the taxes in anticipa- lay the

the conversion. Harvard College tion that a sale in fee by him would not Amory, 9 Pick. 446, 462. If they adopted produce enough to satisfy the mortgage debt this course then their action was in accordwith the incidental disbursements. Wor ance with his suggested intention, and when cester City Missionary Society V. Memorial any of these parcels were converted into Church, 186 Mass. 531, 533, 539, 72 N. E. 71. money the life tenants were not entitled to Included in the estate were several parcels have any part of the proceeds treated as inof realty left by the testator, which taken come and deducted before the whole fell into separately have either been entirely unpro- principal, for being in receipt of the net inductive, or have not produced sufficient in come from the entire trust as constituted come to pay taxes and costs of maintenance, by him, which is not only shown to have and the trustees have supplied this deficiency been reasonably adequate, but has been paid from the income received from the remainder to them from the time of his death, they of the property. While the two investments were realizing all the benefit therefrom in realty made by the trustees need not be which he intended, even if a part of the considered as each has yielded sufficient estate during this time remained barren. returns to pay taxes and expenses, and the Lovering v. Minot, 9 Cush. 151, 158; Elpropriety of the purchase of the estate in dredge v. Heard, 106 Mass. 579; Green v. Park Square is now unquestioned, a sale at Crapo, 181 Mass. 55, 62 N. E. 956; Edwards a profit above the inventory having been v. Edwards, ubi supra. made within a period of five years elapsing A further objection is taken to the payment after the testator's death of three parcels of from income of a broker's commission for the unproductive real estate, an argument negotiating the sale of a parcel of improved also is urgently pressed that out of the pro realty, but there would seem to be no differceeds enough should then have been trans ence in principle between such a sale, and a ferred to income to cover any loss occasioned similar method of disposing of personalty by this delay. It is settled that trustees by trustees, where it has been held that such without unnecessary delay are to convert un an appropriation from income was authorizproductive property received froin a testator ed. Heard v. Eldredge, 109 Mass. 258, 12 into a fund which will produce revenue, and Am. Rep. 687. If the question were open when so created the right of the life tenant objections which perhaps could be soundly to the income is to be ascertained, and the urged against this rule would call for careful income computed from the time of the testa examination, but the rule has been so long tor's death. Edwards v. Edwards, 183 Mass. settled, and presumably followed by trustees 581, 583, 67 N. E. 658, and cases cited. In that it ought not to be disturbed. See New that case on which the appellant strongly re England Trust Co. v. Eaton, 140 Mass. 532, lies the testator directed that his property, 545, 4 N. E. 69, 54 Am. Rep. 493. the bulk of which consisted of unproductive A decree is to be entered affirming the land, and of speculative investments in decrees of the probate court. stocks carried on margins, should be convert Ordered accordingly. ed into sound securities, and after paying a small annuity to his son and daughter-in-law the remainder of the income was to go

(192 Mass. 409) to his wife for life. It is obvious that his

ELDREDGE v. NICKERSON et al. sole purpose was to create a permanent fund (Supreme Judicial Court of Massachusetts. safely invested, the returns from which

Suffolk. June 20, 1906.) should be immediately available for their

1. ELECTIONS PRESERVATION OF BALLOTSsupport. But in the present case the life STATUTES. tenants were not dependent upon the testa

Rev. Laws, c. 11, $ 239, provides that the

presiding officer at every polling place at elector, and the scheme of the will plainly indi

tions of state, city, and town officers in towns cates that he anticipated that the establish “in which official ballots are used,” shall, after ment of the trust fund even before any

the record of the counting has been made, cause division into shares became advisable might

all ballots cast to be publicly inclosed in an en

velope and sealed and delivered to the city or be prolonged in time. The trustees were not

town clerk, etc. Section 345 declares that required to divide the estate, which was not if the town clerk, and certain other officers are only of great value, but nearly one third of

voted for on one ballot, the moderator shall

cause all such ballots, when canvassed and which consisted of real property into "sepa

counted and a record thereof has been made, to rate and distinct shares" if such division was be publicly inclosed in an envelope and sealed found inconvenient, or inexpedient. If not

as provided by section 239. Held, that where, done "then so long as it shall not be neces

at a town election, the town did not use the sary to actually divide the same, to hold towp clerk, etc., were not voted for on one

official ballot, and persons to fill the offices of

ballot, the ballots used at such election were ballots in envelopes and preserving them. not required to be inclosed and preserved.

Rev. Laws, c. 11, 88 239, 345. Under Rev. 2. SAME-RECOUNT-STATUTES-APPLICATION.

Laws, c. 11, $ 267, when an application for a Rev. Laws, c. 11, § 267, declares that when an application for a recount of votes is made,

recount of votes is made, “the envelopes conthe envelopes, containing the ballots sealed, / taining the ballots, sealed,” are to be transare to be transmitted by the town clerk to the mitted by the town clerk to the registrars of registrars of voters who are to open the envel

voters, who are "to open the envelopes, reopes, recount the ballots, and determine the questions raised. Held, that such section, which

count the ballots and determine the questions was the only one providing for a recount after

raised." This section which is the only one an election of town officers, did not authorize providing for a recount of votes after an eleca recount except in towns where the official

tion of town officers, is applicable only to ballot was used or where the officers were voted for on one ballot.

those cases where the statute requires the

ballots “to be publicly inclosed in an enveReport from Supreme Judicial Court, Suf.

lope and sealed up with the seal provided folk County.

for the purpose." It follows that, except in Petition by one Eldredge for writ of man

towns where the official ballot is used, or damus against one Nickerson and others to

where the officers above mentioned are "votcompel recognition of petitioner as a member

ed for on one ballot, no recount of votes can of the board of selectmen of Chatham. In

be had after the result of the election has the Supreme Judicial Court, the case was

been announced and recorded and the meetreported to the full court.

ing has been adjourned. This view is Fletcher Ranney and Chas. Bassett, for strengthened by reference to similar provipetitioner. Heman A. Harding, for respond sions of earlier statutes. St. 1886, p. 202, C. ent.

262, § 2, St. 1886, p. 211, c. 264, § 11, St. 1890,

pp. 422-450, c. 423, 88 97–226, St. 1893, pp. KNOWLTON, C. J. At a meeting of the 1217, 1231, 1255, c. 417, $$ 174, 208, 276. It voters of the town of Chatham for the elec therefore becomes unnecessary to consider tion of town officers, after the votes had been the other alleged defects in the proceedings counted it was announced by the moderator on which the recount was founded, some of that the petitioner had received 152 votes which appear to be important. for the office of selectman, assessor and over As the registrars of voters had no jurisdicseer of the poor, and the respondent Oliver tion to recount the votes, the result of their E. Eldredge had received 149 votes. The action cannot be considered, and the election petitioner was then declared elected, and due declared by the voters in town meeting is record was made accordingly. Afterwards valid. he took the oath of office and entered upon Peremptory writ of mandamus to issue. the performance of his duties. Upon these facts it would appear that he was duly elect

(192 Mass. 387) ed, and he would be entitled to hold the office

PURDON V. BLINN. throughout its term if there were nothing to deprive him of the right.

(Supreme Judicial Court of Massachusetts.

Suffolk. June 20, 1906.) Subsequently measures were taken to ob

1. ABSENTEES-STATUTORY PROVISIONS-CONtain a recount of the ballots. A recount was

STRUCTION. made by the registrars of voters. They found The claim of a divorced wife under a that the respondent Eldredge had received

decree for alimony in gross is debt of the 152 votes and the petitioner only 151 votes, es 144,99, providing that the court may order

of , and the records of the town were amended

the property of absentees to be applied to the accordingly. The respondent Eldredge has discharge of such debts as may be proved been recognized by the other respondents as

against them. duly elected, and is now in the performances

2. SAME-ACTION-NOTICE.

A claim for alimony against the property of the duties of the office. The questions are

of an absentee in the hands of a receiver may whether such a recount was authorized by be proved and allowed, without personal notice the statute, and whether this recount was to the absentee, on proper general notice to inaugurated and conducted in accordance the receiver and persons within the jurisdiction

interested in the estate. with the provisions of law, so as to deprive the petitioner of the office, to which he was Report from Supreme Judicial Court, Sufregularly declared elected at the town meet folk County. ing.

Petition by one Purdon against one Blinn. As proceedings for a recount of votes are Decree for petitioner, and case reported from strictly statutory, they are of no effect unless the Supreme Judicial Court. Affirmed. they are authorized by the statute and begun

Fred A. Fernald, for petitioner. Adams and conducted as the statute provides. The

& Blinn, for respondent. town did not use the official ballot, and the town clerk, selectmen, assessors, treasurer, KNOWLTON, C. J. This is a petition collector of taxes and school committee were brought under Rev. Laws, c. 144, § 9, relnot voted for on one ballot. It is only when ative to property in the hands of a person apone or the other of these conditions exists pointed receiver of the estate of a resident of that the statute provides for inclosing the the commonwealth who "has disappeared,

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