Atkins v. Atkins , 279 Mass. 1 ( 1932 )

Crosby, J.

This is a suit in equity brought in the Probate Court by the petitioner against Nathan K. Atkins, individually, and said Reuben G. Atkins, Nathan K. Atkins and James C. Batchelder as executors of the will of Selina Atkins, and the Berkshire Life Insurance Company, seeking to have declared that a certain endowment insurance policy for $5,000 on the life of said Nathan K. Atkins is charged with a trust in favor of the petitioner, and to have the policy ordered to be assigned and delivered to him. Two demurrers, filed by Nathan K. Atkins, individually, and as coexecutor, were overruled and appeals were taken to this court. The respondent James C. Batchelder, as a co-executor, and Nathan K. Atkins severally answered to the merits. The case was heard by the judge of probate who found, in fact, that in 1913 the Berkshire Life Insurance Company issued two endowment policies on the life of the respondent Nathan K. Atkins, the first, numbered 88542, payable in case of his death to his estate, and the second, numbered 88594 — the policy here in question — payable in case of his death to his brother, who is the petitioner; that in 1921 both these policies were assigned to the testatrix, who “became the sole and absolute beneficiary under each policy”; and he ordered that a decree be entered that no trust existed in favor of either Reuben G. Atkins or Nathan K. Atkins in policy numbered 88594, but that it should be held and administered by the executors of the will of Selina Atkins as property belonging to her estate. From this decree the petitioner and Nathan K. Atkins, the principal respondent, appealed. The latter contends that his answer contains a cross bill which seeks to have the insurance policy delivered to him, and that it was error for the judge not to order a decree to that effect. The evidence before the judge of probate is reported under G. L. c. 215, § 18, as amended by St. 1923, c. 392, and St. 1924, c. 194, § 1.

Nathan K. Atkins further contends that there was error in the trial judge’s refusal to rule that “This court has power in this proceeding to decree that the executors of decedent’s estate hold the policy numbered 88594 referred to in the petition, in trust for the exclusive benefit of respondent Nathan K. Atkins and to order said pokey to be assigned by said executors to him”; and that there was error in the admission of certain evidence. The petitioner contends, in substance, that there was a trust relationship in the whole transaction; that since the decedent was trustee of the estate of her husband for the benefit of herself and for her two sons equally, and as the premiums on the policy were paid at least in part out of said trust property, the policy is held subject to the same trust.

The judge found that after the decedent became sole trustee under her husband’s will she began to take over the trust property into her individual name; that before her death it had all been so taken over and mingled with money which belonged to her individually, and that it could not be distinguished or separated therefrom. In these circumstances it is manifest that the trust came to an end. Little v. Chadwick, 151 Mass. 109. In the case last cited a trustee mingled trust assets with his own, used them all in his business, and subsequently failed and made an assignment for the benefit of his creditors. It was held that none of his property was affected with a trust, and that the beneficiary could only come in and share in the proceeds thereof with the creditors. In that case it was said, at page 110, that “When trust money becomes so mixed up with the trustee’s individual funds that it is impossible to trace and identify it as entering into some specific property, the trust ceases.” To the same effect see also Lowe v. Jones, 192 Mass. 94, 100; Hewitt v. Hayes, 205 Mass. 356; Patterson v. Pendexter, 259 Mass. 490, 493, 494, and cases collected.

Whether or not there was any trust in the money held by Mrs. Atkins as trustee before either of the policies was issued, it cannot rightly be held in view of the circumstances that there is a trust in favor of the petitioner in the policy in question. If the policies were ever impressed with a trust, each was impressed with a trust in favor of both sons. But when both policies were assigned to Mrs. Atkins in 1921 the trust was extinguished and she then held the entire ownership in them. The judge found that there was no agreement with Nathan that when he should require it she would reassign the policy to him or her title in either policy. Even if it be assumed that the trust survived, there was no trust in one policy for the benefit of Nathan and in the other for the benefit of Reuben, but both sons were entitled to share equally in the proceeds of each policy. The assignment of one of the policies back to Nathan did not affect the trust, and Reuben would still be entitled as cestui que trust to his interest in both policies, but he would not be entitled to the whole beneficial interest in either. Since he will receive the beneficial interest now standing in the name of Mrs. Atkins, and since he does not ask for any relief respecting the other policy, he is not entitled to the relief which he seeks. Whether or not Mrs. Atkins obtained the entire ownership and beneficial interest in both policies by the assignments to her in 1921, this petitioner is not entitled to relief on account of the original trust relationship. He contends that the trust in the policy numbered 88594 in his favor was expressly declared. ' There is no doubt that a trust in personal property may be orally declared. Taft v. Stow, 167 Mass. 363. Chace v. Gardner, 228 Mass. 533. Bradford v. Eastman, 229 Mass. 499, 501. Druker v. Druker, 268 Mass. 334, 339. Nor is any particular form of words necessary. Bailey v. Wood, 211 Mass. 37, 42. Packard v. Old Colony Railroad, 168 Mass. 92, 96. But the words used must unequivocally show an intention that the legal estate was vested in one person, but to be held in some manner or for some purpose on behalf of another. Peck v. Scofield, 186 Mass. 108, 111.

There is no evidence which requires a finding that there was such an intention on the part of Mrs. Atkins. There was evidence that she referred to the policies as “Reuben’s and Nathan’s policies.” It does not appear from such reference whether they were entitled to the beneficial interest therein or merely that they were payable to Reuben and Nathan respectively in different eventualities. As she requested that the policies should be transferred to her it could warrantably have been found that during the time Nathan was in Mexico she did not intend that any one should have the beneficial interest in the policies except herself. A finding would be justified that she did not intend to hold the policies in trust for either of her sons after they had been assigned to her in 1921.

If we assume, without deciding, that the answer of Nathan constituted a cross bill, the finding of the judge that there was no agreement by Mrs. Atkins to transfer the policies to him on his return from Mexico disposes of his contention, and his appeal cannot be sustained.

The petitioner cannot rely on the equitable doctrine which may be sometimes invoked because of incompleted transfers, since it is found that Mrs. Atkins did not make any definite agreement with her sons to the effect that “in all matters she would treat her sons equally, and the petitioner’s acquiescence in her conversion of the trust funds and use of the principal of the trust was not based upon such an agreement.” Accordingly the petitioner is not entitled to invoke this equitable doctrine. Stone v. Hackett, 12 Gray, 227. Herbert v. Simson, 220 Mass. 480. Jones v. Old Colony Trust Co. 251 Mass. 309, 312. Young v. Young, 80 N. Y. 422.

The evidence would not justify a finding that Reuben, because the first policy was assigned to Nathan by his mother, is entitled to an assignment of the other policy to him.

We find no reversible error in the rulings relating to evidence, or in the rulings granted or refused.

It results that by the assignment of the policies to Selina Atkins by the petitioner and by the principal respondent transferring to her all their interests therein, the policy in question upon her death passed to the executors of her estate. If she intended to transfer that policy to Reuben, such intention never was carried into effect. It follows that it became an asset of her estate.

Decree affirmed.