Nugent v. Cloon

117 Mass. 219, 1875 Mass. LEXIS 197

Opinion

Wells, J.

This, being a writ of entry, must depend entirely upon the question whether the demandant has the better legal title. The equitable rights of either party, under the original agreement between Pool and Nugent, and its transfer to Mrs. Parton, cannot be enforced or protected in this proceeding, even if the facts were sufficiently developed to enable the court properly to determine those rights.

By the will of Nathan Pool the title to the estate vested in the trustee, with a general and unrestricted power to sell and reinvest. It was a power attached to the trust, and not personal to the nominee of the testator. Upon the appointment of Mrs. Pool as trustee, by the Probate Court, the legal title became vested in her, and she was thereby clothed with the same power of sale. Gen. Sts. c. 100, § 9. Purdie v. Whitney, 20 Pick. 25. Gibbs v. Marsh, 2 Met. 243, 254. Parher v. Converse, 5 Gray, 336, 341. As executrix also she had a power of sale, by the express terms of the will, for payment of debts.

The deed, under wnich the plaintiff in review claims title, was executed by her in both capacities. 3STo fraud is shown, upon the agreed statement, as a ground for avoiding the conveyance. If it might be inferred that the plaintiff in review received her deed without consideration or with notice of the trusts with which the estate was charged, her legal title would not thereby be defeated. The remedy of the cestuis que trust, if they are entitled to any, would be in equity. Hill on Trustees, 282.

Judgment for the plaintiff in review.