A Connecticut testatrix gave a portion of the residue of her property, including land in New York, to trustees for the use of three of her children in equal shares, with authority to the trustees to sell the realty at their discretion and hold the avails thereof on the same trusts. After the resignation of the last of the original trustees, the defendant was appointed a substitute trustee of the trust created for the benefit of one of the three children, and others were appointed as trustees for the other two; and all three of these trustees were made ancillary trustees in New York because of the real estate there. To effect a sale of this and a division of the proceeds, the defendant brought his application to the Supreme Court in New York, making all persons interested parties, and that court appointed a New York trust company as a trustee "in the place and stead" of those named in the will, and directed it to sell and convey the realty and to distribute the proceeds to the persons found by the court to be entitled thereto. The execution of this decree was reported to and approved by that court, and the defendant received his share of the trust avails and deposited the same in a savings-bank in this State. Upon a suit by his successor to recover this money it was held: — 1. That the defendant could not justify his refusal to turn over the money to the plaintiff, upon the theory that he had received and still held it under his appointment as ancillary trustee by the Supreme Court of New York, and to which he was therefore bound to account. 2. That the acceptance by the Court of Probate of an annual trust account of the defendant, unappealed from, in which he did not charge himself with the money so received and deposited, was not an adjudication that he held it as ancillary trustee under his New York appointment, nor a bar to the present action. Whether the Court of Probate could, under the circumstances, have made a final adjudication of that question, quaere. A party cannot be deprived of his right to prove a material fact, merely because his adversary concedes it. The exclusion of the evidence offered is, however, harmless, if the fact is otherwise established and found proven. The defendant offered a writing signed by the beneficiary for whom he was trustee, to the effect that he, the beneficiary, would make no objection to the allowance of the defendant's account as trustee in New York, upon the ground that the avails of the sale received by him had not been sooner invested and at a higher rate of interest. Held that the paper was properly excluded, since it contained no stipulation that the defendant should account in the New York court, even if such a stipulation could have affected the defendant's successor.
HALL, J.
The pleadings in this case are unnecessarily prolix. To the second of the three defenses, which were several times amended, there is a demurrer upon some forty grounds, when one tenth of that number would have been sufficient. The demurrer to this defense was sustained, and a demurrer to the third defense was overruled. A separate discussion of these particular rulings is unnecessary, since the questions presented by these demurrers were afterward raised and decided upon the trial of the case upon its merits.
Upon the facts found by the trial court and those admitted by the pleadings, the defendant Downs made practically but two general claims in justification of his refusal to pay the money in question to the plaintiff as his successor in office: first, that the facts show that he, Downs, holds the money deposited in the Citizens Savings Bank of Stamford, under his appointment as ancillary trustee by the Supreme Court of New York, and therefore holds it subject to the order of that court; and second, that the Court of Probate of Stamford approved the account presented by Downs before his resignation, in which he did not charge himself with the money in question, and that there has been no appeal from the order accepting and approving said account. Both of these claims were overruled by the trial court.
The situation of the parties interested in the New York real estate, and the object they were endeavoring to accomplish; the language itself of the decrees of the New York court, and the manner in which they were executed; and the acts of the parties under these decrees, sustain the ruling of the lower court as to the first of these claims.
The situation seems to have been this: By force of the terms of the will and the proceedings under it, both in this State and New York, the legal title to real estate in question, with power given to a majority of the executors to sell the entire property, was in 1903, before the appointment of the Title Guarantee and Trust Company as trustee, in the three trustees appointed both in Connecticut and New York, of whom the defendant Downs was one, and in the two devisees Mary and Eleanor, each of said five having a title either as trustee or as absolute owner to a one-fifth interest in said property. All the interested parties evidently desired the property to be sold and the proceeds divided among these five persons. To accomplish this it was found to be for the interest of all parties that the entire title should be taken by one person in New York who could be entrusted with it, and who would be qualified to make the sale, and to divide the proceeds among the five persons who were then entitled to receive it under the will.
Looking at the language of the decrees of the New York court appointing the Title Guarantee and Trust Company in 1903, and accepting its account in 1904, we find that the Title Guarantee and Trust Company was appointed not as a mere agent to make the sale for the existing trustees, but as a trustee itself, in the place and stead of the executors and trustees named in the will; to execute the powers given to such executors and trustees; to convey the real estate; to divide and distribute the proceeds among the parties entitled to it; and to render a full account to the New York court. By the decree of 1904 the New York court finds that the property has been sold by the substituted trustee; that by the will, Mary Mott Jones, Eleanor Mott Jones, John G. Leeds, trustee, are Nichols C. Downs, trustee, and Carrie B. Jones, trustee, are the persons to each of whom a one-fifth part of the proceeds of the sales should be paid. It orders the Title Guarantee and Trust Company, trustee, to so pay the proceeds to these five persons, and releases the Title Guarantee and Trust Company from liability on account of said trust upon making such payments.
Regarding the acts of the parties, we find that the Title Guarantee and Trust Company has paid the proceeds of the sale directly to the individuals who, either as devisees or as trustees by appointment in this State, are by the will entitled to receive the proceeds of the sale, and two of whom, Mary and Eleanor, were only entitled to receive it as devisees and not under any New York appointment. Though a part of the one fifth paid to the defendant Downs was received by him in New York, the remainder was sent to him in Connecticut, where he has deposited and used $5,500 of it as if he held it as trustee under his Connecticut appointment. Although this money was paid to Downs in 1904, it does not appear that during the four years after that time and before the trial he has ever been required or has ever endeavored to make any accounting to any New York court for the money he has so received. Since the Title Guarantee and Trust Company was itself a trustee by appointment by the same New York court which had appointed Downs a trustee in that State, and had accounted to that court and had paid over the money by its direction to the persons who were to receive it under the will, it would seem to be a useless proceeding to require Downs to file an account with the same court stating that as ancillary trustee he had received from the Title Guarantee and Trust Company a one-fifth part of the proceeds of the sale, and to require him to procure from the Supreme Court of New York an order directing him as ancillary trustee to pay such one-fifth part to himself as principal trustee.
As we interpret the decrees of the Supreme Court of New York, the Title Guarantee and Trust Company, by its appointment as substituted trustee in that State, not only acquired all the trust title to this New York real estate which Downs and the other trustees had before possessed under their New York appointments, but was clothed with all the powers which they had before possessed respecting it; and was charged with the same duty of paying the proceeds of the sale of it to the Connecticut trustees, as Downs and the other trustees would have been under their New York appointments had they themselves sold the property and received the proceeds; and that after the appointment, upon Downs' application, of the Title Guarantee and Trust Company as the New York trustee, Downs ceased to be any longer a trustee of this property under his appointment in New York. If as ancillary trustee he had any proper charges against this fund, he was given an opportunity to present them in the court below.
The ruling upon the defendant Downs' second claim was correct. Sections 383 and 384 of the General Statutes require trustees, with certain exceptions, to annually render to the Court of Probate having jurisdiction, their accounts, embracing an inventory of the estate held by them; how it is invested, and the items of income and expenditure; and empower the Court of Probate to adjust and allow such accounts, and to make necessary orders to secure the execution of the trusts, subject to appeal as in other cases. If under these sections the Court of Probate of Stamford could, under the circumstances, have finally adjudicated the question of whether, under the will of Mary F. Jones and the decrees of the Supreme Court of New York, the defendant Downs held the fund in question under his Connecticut appointment or under that of the Supreme Court of New York, it did not do so by merely approving the account presented by Downs in which he did not charge himself with the item of $5,500. The question presented in the present case was neither raised nor decided by the Court of Probate, and its action in accepting Downs' account is not a bar to this action. Prindle v. Holcomb, 45 Conn. 111, 123; Lawrence v. Security Co., 56 id. 423, 428, 15 A. 406.
We are not prepared to sanction the ruling of the trial court in excluding Exhibit 1, because opposing counsel conceded Downs' appointment as ancillary trustee. Such admission did not deprive the defendant of the right to prove, by the decree of the court, that fact which was material to the inquiry before the court. But as the court has found that he was so appointed, and as paragraph 7 of the second defense, which was admitted by the demurrer, states the substance of the decree, we do not see, upon an examination of Exhibit 1, which is a part of the record before us, how the defendant could have been injured by its exclusion.
There was no harmful error in excluding Exhibit 3. The finding of facts correctly states the substance of the order of the Court of Probate of Stamford. The copy of the record offered neither proves nor tends to prove that Downs has ever accounted or been excused from accounting for the money in question.
Exhibit 8 was rightly excluded. It contains no stipulation of William P. Jones that Downs should account for this money in the New York court, even if such a stipulation could have affected this plaintiff.
Exhibits 5 and 6 were properly rejected. They do not contain admissions by plaintiff's attorney to defendant's attorney that an accounting regarding these funds must be had in New York, even if his opinion to that effect would have been admissible as evidence.