The question in this case arises under the will of William S. Vose, late of Newport, who died October 5, A.D. 1880. The will was admitted to probate November 8, A.D. 1880, and his widow, Catherine M. Vose, and Augustus P. Sherman, named therein as executors, qualified as such. Said Catherine died May 19, A.D. 1882, and said Sherman afterwards served alone until December, A.D. 1885, when he resigned, and the defendant, A. Prescott Baker, was appointed administrator de bonis non with the will annexed and qualified.
The will makes provision for the testator's widow, his son, William S. Vose, his son's children, and his two sisters, and directs the executors to sell a house and lot on Bath Road as soon as they can, but without sacrifice, and invest the proceeds and use the income or interest in carrying out the provisions of the will. This sale has not been made. The will gives to said son, after the widow's death, the income and interest of six thousand dollars for his life. It also directs the executors, after the widow's death, "to invest and keep invested in some safe and profitable manner, if the same has not been already invested, the sum of twelve thousand dollars," and out of the income thereof to pay to the testator's daughter, Mary Catherine Grinnell, yearly during her life, the sum of $416 in two equal semi-annual payments, and also, during her life, to
pay the rest of the income, if any, to his granddaughter, Catherine Williams, the daughter of said Mary, and in case of her death during the life of said Mary, leaving children, to pay the same to said children. After the death of said Mary the will directs a further disposition of the interest and principal of said sum of $12,000. Said Mary Catherine Grinnell and said Catherine Williams are still living.
In May, 1882, the month the widow died, the surviving executor, Sherman, intended to set apart said fund of $12,000 in conformity with the directions of the will, and made upon his books in which he kept his accounts with the estate the entry following, to wit: —
To Catherine Grinnell and daughter Cath. Williams:
Income of Mortg. of John Caswell . . . . . $5,000 — 7 $350 00 " " 20 shares Amer. Ex. Bank, estimated 2,500 140 00 " " 26 " Metr. " " 4,420 260 00 Dep. in Sav. Bank, cash . . . . . . . . . . . . 80 _______ _______ $12,000 $750 00
Less Tax (estimate) . . . . . . . . . $50 00 Probate and adv. . . . . . . . . . . 2 38 Executor's services . . . . . . . . . 75 00 127 38 _______ $622 62
To W.S. Vose:
Income of Fadden Mortg. . . . . . . . . . . $6,874 — 6 $412 44 Less probable expenses, Tax . . . . . $69 00 Probate and adv. . . . . . . . . . . 2 37 Executor . . . . . . . . . . . . . . 25 00 96 37 _______ $316 07
In accordance with the entry, Sherman deposited the sum of $80 in his name as executor in the Savings Bank in Newport, and Mrs. Grinnell and William S. Vose were informed, but not in writing, that the funds were set apart. Sherman subsequently applied the income of the $12,000 fund agreeably to the entry,i.e. he paid Mrs. Grinnell $416 a year and Mrs. Williams $206 a year
until A.D. 1884, when the Metropolitan Bank of New York ceased to pay dividends and went into liquidation, since when Mrs. Grinnell has received her amounts in full, but Mrs. Williams has received nothing. The twenty-six Metropolitan Bank shares were appraised in the inventory at $3,120, and the twenty shares of the American Exchange National Bank stock were appraised at $2,000, but at the date of said entry the quotations of sales of said shares in the market showed their value to be as set down.
Said Sherman, after making said entries, settled his accounts as executor in the probate court, in the years 1882-1885, inclusive, in December of each year. These amounts do not show any charging off or setting apart of the property entered in his books for the trusts; but, on the contrary, the property keeps its place in the accounts as part of the estate, and was turned over to Baker as such on his appointment in December, 1885. The accounts, however, show payments to Mary Catherine Grinnell of $208 in November, 1882, of $208 in May and in November, 1883 and 1884, and of $208 in May, 1885, and also of payments to Catherine Williams of $103.31 in 1882, of $103.31 in May and in November, 1883, and of $103.31 in May, 1884, in which last named year the Metropolitan Bank failed.
The question is, whether enough was done by Sherman to make the trust in favor of Mrs. Grinnell and Mrs. Williams attach to the property, entered for them on his book, separately from the rest of the estate. If there was, the loss falls thereon; if there was not, the loss falls on the estate generally.
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The question in this case arises under the will of William S. Vose, late of Newport, who died October 5, A.D. 1880. The will was admitted to probate November 8, A.D. 1880, and his widow, Catherine M. Vose, and Augustus P. Sherman, named therein as executors, qualified as such. Said Catherine died May 19, A.D. 1882, and said Sherman afterwards served alone until December, A.D. 1885, when he resigned, and the defendant, A. Prescott Baker, was appointed administrator de bonis non with the will annexed and qualified.
The will makes provision for the testator's widow, his son, William S. Vose, his son's children, and his two sisters, and directs the executors to sell a house and lot on Bath Road as soon as they can, but without sacrifice, and invest the proceeds and use the income or interest in carrying out the provisions of the will. This sale has not been made. The will gives to said son, after the widow's death, the income and interest of six thousand dollars for his life. It also directs the executors, after the widow's death, "to invest and keep invested in some safe and profitable manner, if the same has not been already invested, the sum of twelve thousand dollars," and out of the income thereof to pay to the testator's daughter, Mary Catherine Grinnell, yearly during her life, the sum of $416 in two equal semi-annual payments, and also, during her life, to
pay the rest of the income, if any, to his granddaughter, Catherine Williams, the daughter of said Mary, and in case of her death during the life of said Mary, leaving children, to pay the same to said children. After the death of said Mary the will directs a further disposition of the interest and principal of said sum of $12,000. Said Mary Catherine Grinnell and said Catherine Williams are still living.
In May, 1882, the month the widow died, the surviving executor, Sherman, intended to set apart said fund of $12,000 in conformity with the directions of the will, and made upon his books in which he kept his accounts with the estate the entry following, to wit: —
To Catherine Grinnell and daughter Cath. Williams:
Income of Mortg. of John Caswell . . . . . $5,000 — 7 $350 00 " " 20 shares Amer. Ex. Bank, estimated 2,500 140 00 " " 26 " Metr. " " 4,420 260 00 Dep. in Sav. Bank, cash . . . . . . . . . . . . 80 _______ _______ $12,000 $750 00
Less Tax (estimate) . . . . . . . . . $50 00 Probate and adv. . . . . . . . . . . 2 38 Executor's services . . . . . . . . . 75 00 127 38 _______ $622 62
To W.S. Vose:
Income of Fadden Mortg. . . . . . . . . . . $6,874 — 6 $412 44 Less probable expenses, Tax . . . . . $69 00 Probate and adv. . . . . . . . . . . 2 37 Executor . . . . . . . . . . . . . . 25 00 96 37 _______ $316 07
In accordance with the entry, Sherman deposited the sum of $80 in his name as executor in the Savings Bank in Newport, and Mrs. Grinnell and William S. Vose were informed, but not in writing, that the funds were set apart. Sherman subsequently applied the income of the $12,000 fund agreeably to the entry,i.e. he paid Mrs. Grinnell $416 a year and Mrs. Williams $206 a year
until A.D. 1884, when the Metropolitan Bank of New York ceased to pay dividends and went into liquidation, since when Mrs. Grinnell has received her amounts in full, but Mrs. Williams has received nothing. The twenty-six Metropolitan Bank shares were appraised in the inventory at $3,120, and the twenty shares of the American Exchange National Bank stock were appraised at $2,000, but at the date of said entry the quotations of sales of said shares in the market showed their value to be as set down.
Said Sherman, after making said entries, settled his accounts as executor in the probate court, in the years 1882-1885, inclusive, in December of each year. These amounts do not show any charging off or setting apart of the property entered in his books for the trusts; but, on the contrary, the property keeps its place in the accounts as part of the estate, and was turned over to Baker as such on his appointment in December, 1885. The accounts, however, show payments to Mary Catherine Grinnell of $208 in November, 1882, of $208 in May and in November, 1883 and 1884, and of $208 in May, 1885, and also of payments to Catherine Williams of $103.31 in 1882, of $103.31 in May and in November, 1883, and of $103.31 in May, 1884, in which last named year the Metropolitan Bank failed.
The question is, whether enough was done by Sherman to make the trust in favor of Mrs. Grinnell and Mrs. Williams attach to the property, entered for them on his book, separately from the rest of the estate. If there was, the loss falls thereon; if there was not, the loss falls on the estate generally.
The question is such a one as is likely to arise under any will that invests the same person with the double character of executor and trustee, unless the estate for the trust is specifically given, or some unmistakable act of appropriation is directed. If Sherman had sold the real estate, and invested the proceeds to the amount of $12,000 in his own name as trustee for Mrs. Grinnell and Mrs. Williams, or if he had transferred into his own name as such trustee the mortgage, stocks, and deposit entered on his book for them, the appropriation would have been so complete that no question would have arisen. It is not contended that so complete an act was necessary. Dix v.Burford, 19 Beav. 409. The contention is, that what was done by Sherman was tantamount merely to
an appropriation in his own mind, which, it is well settled, is insufficient. Miller wife v. Congdon, Executor, 14 Gray, 114; Probate Court of Scituate v. Angell, 14 R.I. 495, 498. We think this view is not tenable. Said Sherman was directed "to invest and keep invested in some safe and profitable manner, ifthe same has not been already invested, the sum of twelve thousand dollars," plainly signifying that, if the executor found satisfactory investments already existing, he might adopt them for the trust. He did adopt the investments entered on his book to the extent of entering them on his book, a book in which he kept his accounts with the estate. In considering the significance of this entry it is to be remembered that he was directed to make the appropriation immediately after the widow's death, and that this entry was made the very month of her death. Besides the entry there was a deposit of the eighty dollars required to make up the sum of $12,000, and Mrs. Grinnell was informed that the fund had been set apart. She subsequently received the $416 which she was to have out of the income of such a fund; and Mrs. Williams, who was only to have, under the will, the residue of the income, received $206.62 until the failure of the Metropolitan Bank, so that she also must have known that she was receiving it from a particular fund. It seems to us that these things show, at least prima facie, an overt appropriation, and that, but for the fact that Sherman went on settling his accounts with the court of probate, without any express indication therein of the appropriation, its sufficiency would be beyond question. The accounts, however, showed the payments to Mrs. Grinnell and Mrs. Williams, and those payments could have been accounted for to the court of probate only by making known the setting apart of the fund. And, for the rest, it is probable that neither Sherman nor the court realized that, by the setting apart, Sherman's duty as executor had merged in his duty as trustee, the more especially as there had been no transfer of the legal title of the mortgage and stock so set apart. This also explains the delivery of the fund to Baker.
It is urged against the sufficiency of the setting apart, that Mrs. Grinnell and Mrs. Williams were not consulted in regard to the revaluation of the stocks. It would doubtless have been well for Sherman to have consulted not only Mrs. Grinnell and Mrs. Williams,
but also all who were affected by it, since others were affected; but we do not think his neglect to consult them invalidated the appropriation, since said stocks were fairly appraised at their market value, and the appropriation is left to Sherman by the will.
Our conclusion is, that there was a sufficient setting apart, and that the loss must fall on the trust as thereby established.
The cause was then referred to a master to take an account of the trust fund. The complainant filed exceptions to his report.
Providence, January 23, 1892.