Wright v. Blinn , 225 Mass. 146 ( 1916 )

By the court.

The will of John Kimball contained the provision for the benefit of his sister Ellen which is printed above.

The petitioner alleges that he furnished board, lodging, medicine and nursing for the sister of the testator for several years, the fair price for which he seeks to recover from the trustee. The case was referred to a master who reported in substance that the trustee never made any contract with the petitioner but steadfastly refused to do so; that the trustee paid directly to the beneficiary a sum in excess of the income of the trust fund, and, after narrating at some length the conduct of the trustee, that the trustee acted in good faith and not in an arbitrary or capricious manner.

The first exception to the master’s report is that it was obligatory upon the master to find that the trustee acted capriciously and arbitrarily in not paying for the support of the beneficiary from the death of the testator until the appointment of the trustee. Manifestly this is only one element bearing on the question and is not decisive. It is quite overborne by other circumstances stated in the report.

The second exception is the general one that the master’s finding of fact is erroneous. The familiar rule is that where, as here, the evidence is not reported, no question of law or fact is presented by such an exception. So long as the trustee acted in good faith and not arbitrarily or capriciously, his discretion as to payment from the principal of the fund cannot be reviewed. Brown v. Lumbert, 221 Mass. 419. Corkery v. Dorsey, 223 Mass. 97. The decree of the Probate Court may be reversed ^* and a new decree may be entered overruling the exceptions to and confirming the master’s report and dismissing the petition.

So ordered.

* The decree of the Probate Court declared that the acts of the trustee in exercising the discretion reposed in him by the will of John Kimball were not reviewable, and ordered that the petition be dismissed, but it also declared “That the petitioner has no valid claim against the respondents or the said estate of John Kimball,” which was a matter not material to the exceptions passed upon by this court and not necessary to the decision of the case.