Duncan v. Dow

It is elementary that the purpose of an account is to determine with what the accountant should be charged. In Buber v. Buber, 85 N.H. 160, it was held that a bequest to the deceased was vested but not reduced to the possession of the deceased was nevertheless a property right that should be inventoried and accounted for by the administrator of his estate. "No disposition of the right having been made, the decree of the probate court allowing the appellee's account without charging him with this asset was error." Id., 164. See also, 34 C.J.S. 1101; In re Connolly's Estate,73 Mont. 35, 64; In re Raleigh's Estate, 48 Utah 128, 139. The present account is not an annual one of income and profit perhaps with supplemental information of a list of the securities held but is a final one made for the purpose of discharging the estate of the first trustee from all liability after delivery of the balance shown.

The Trial Court based its verdict for the defendant upon the following ruling, which was duly excepted to by the plaintiff: "The claim of the plaintiff that the decree of the Judge of Probate sounds in money is untenable. The Judge of Probate decreed that there was in the hands of the accountant securities and cash as appears in the annexed schedule of said account amounting to Ten Thousand Six Hundred and Twenty-five Dollars and sixty-seven cents ($10,625.67). These securities as listed in this account were turned over to and receipted for by the Successor Trustee."

This ruling was erroneous. If a probate decree is ambiguous and may be construed in a manner that makes it correct or in another that makes it illegal, the former construction is to be preferred. Unless the creator of a trust provides otherwise, it is the duty of a trustee to invest the funds in accordance with statutory requirements and he is liable for losses due to the depreciation of securities invested in by him that are not so classified. 2 Scott, Trusts, s. 205, p. 1098. An accounting that excuses a trustee from such duty is improper. The form of account in general use in the probate courts of the State outside of Rockingham County calls for a balance stated in money and a decree that charges the trustee with a cash balance. Although the probate decree in the present case is not free from ambiguity because it refers to a schedule that states only the cost prices of the securities, yet it must be understood to mean that the accountant is chargeable with such prices. Otherwise the matter of depreciation for which the trustee may be responsible cannot be considered and the decree on such an account is incorrect. There was nothing in the account to inform the Probate Judge or interested parties that the cost prices were not still the actual market values of the securities.

In other words, the disputed decree is held to sound in money and not in useless figures of inventory or cost values that may be found by resort to other parts of the record of the case. In re Boyer, 124 N.Y.S. 892; In re Richardson's Will, 266 N.Y.S. 388, 390. The decree is a judgment for money and not for securities in specie. While there may be instances of probate decrees that charge accountants in specie (Kent v. Hunt, 74 N.H. 74), the practice is not be encouraged except where there is a duty so to hold property.

Since no defense is shown to the action of debt, the plaintiff is entitled to judgment for the balance of $4,167.36 with interest from the date of the probate decree, if the latter stands.

However two of the investments were legal. If the item of depreciation was not claimed in the account because of a mistake, the Probate Judge may still reopen it and correct the account. "We are of opinion that wherever there has been a manifest mistake in an account settled in the court of probate, it is competent to the judge of probate at any time before a final settlement of the estate, to correct it in a subsequent account, provided there does not appear by the record to have been a particular adjudication upon the subject. Mistakes will sometimes unavoidably occur, and it is just and reasonable that they should be thus corrected." Allen v. Hubbard, 8 N.H. 487, 489, 490. See also, Hoyt, Probate Practice, 184, and cases there. So far as can be learned from the exhibits, the brother Albert. Dow made no charge against his sister for personal services or for a commission. If that is a fact, it might be found fair on a reopening of the account for the Probate Court to consider this. The bequest was originally $10,000. Any loss due to neglect of the trustee should be figured from this and not from an appreciated value of the purchased securities at the time of the inventory. If securities once legal ceased to be so, a reasonable time should be allowed for reinvestment. It might be found that consideration of other items is involved in a possible reopening on account of the item of depreciation mistakenly overlooked.

It is not the duty of the successor trustee to contest the account of the defendant as executrix, merely to collect the assets as disclosed by the account. "Except under extraordinary circumstances, no duty would, therefore, devolve upon the present trustee to investigate the conduct of his predecessor." Spooner v. Dunlap, 87 N.H. 384, 387.

If the defendant desires to move to reopen her account in the probate court, it would be proper for the present action to be stayed pending the outcome of such motion. A corrected account should be allowed, if at all, as of such date as to make it a proper basis for the present action of debt.

Judgment for the plaintiff, nisi.

DUNCAN, J., did not sit: the others concurred.

ON REHEARING. After the foregoing opinion was filed the defendant moved for a rehearing.