Billings v. Billings , 110 Mass. 225 ( 1872 )

Chapman, C. J.

One of the questions in controversy between these parties is whether interest on the legacy, given in Samuel Billings’s will to the defendant in trust for the plaintiff, should commence at the time of the testator’s decease. The parties agreed orally to submit the question to Henry Chapin, Esquire, as referee, and to abide by his award. The plaintiff understood, that notice and an opportunity for a hearing were to be given to the parties; but the defendant understood otherwise. No hearing was had, and no notice of a hearing was given ; and the referee decided against the plaintiff. The defendant contends that the award was decisive of the question. But a hearing is usually so important before the decision of a question, either of fact or law, that a party ought not to be concluded by an award, made without a hearing, unless he has agreed to such a course. If there is any reasonable doubt about it, the award should be held void.

The finding of the master is against the defendant, and as matter of law the interest should commence at the decease of the testator. Gen. Sts. e. 97, § 23. Sargent v. Sargent, 103 Mass. 297. We think the finding of the master is right, and that the award ought not to deprive the plaintiff of his right to the interest to which he is legally entitled.

The finding of the master is also correct, that the defendant ought to account for the value of the right to subscribe for the new stock in the Boston and Albany Railroad Company, The legacy of $5000 was to be invested in productive stocks; and soon after the testator’s death the defendant, being possessed of a large number of shares in that corporation, appropriated as many of them, at $144 per share, (that being their market price,) as would make the sum of $5000, namely, 34f| shares. The right to subscribe for new shares at par, as well as the dividends, was incident to the ownership of the shares, and belonged to the cestui que trust, and should have been treated as his property. Atkins v. Albree, 12 Allen, 359. For the same reason, the 81-shares of the stock of the Pittsburg, Fort Wayne and Chicago Railroad Company, with the dividends thereon, should be accounted for.

A cestui que trust is entitled to have the management of the trust property confided to suitable persons, who will manage it for his interest; and there are a great variety of cases in which the court will remove a trustee appointed by a testator, and appoint one or more new ones. This subject is discussed in Perry on Trusts, §§ 275-279, 817, 818, 890, and the principal authorities are there cited. If the trustee misconducts himself, or deals with the trust fund for his own personal profit and advancement, or makes a grossly unreasonable claim upon the trust property, adverse to the cestui que trust, this constitutes a reason for removing him. A reasonable discretion should be exercised by the-court; reasonable presumptions should be made in favor of the trustee; and regard should be had to his apparent disposition and intentions.. In view of the statements contained in the master’s report, we think the defendant should be removed from his trust, for having intentionally dealt with the fund with an improper regard for his own profit and benefit, and with a gross disregard of the interests of the cestui que trust. As this is a sufficient cause, we omit to discuss the other reasons alleged. The wrong is aggravated by the fact that the cestui que trust is without skill or experience in business, and of feeble intellect. X Decree accordingly, with costs for the plaintiff.