State v. Hunter , 73 Conn. 435 ( 1900 )

The bond in suit recites the fact that Rowland B. Lacey has been duly appointed by the will of John Goodsell, executor thereof and trustee of a certain fund therein created, and has accepted said trust; and then provides that it is to be void "if the said Rowland B. Lacey shall faithfully discharge the duties of his said appointment according to law," but otherwise good. This action is against the sureties alone. The contract of suretyship is construed strictly, and the liabilities following from it cannot be extended by implication beyond its precise terms and scope. Bulkeley v. House,62 Conn. 459, 470. The defendants, therefore, cannot be held to answer for any breaches of duty committed by Lacey prior to the delivery of the bond.

At its date, February 28th, 1894, he held two positions, with reference to the will of John Goodsell. He was its sole executor. He was also acting as trustee under it of a part of the estate, which had been set apart as a special trust fund. In this latter capacity he filed, on the day named, an account of his trust, in the Court of Probate, containing a statement of the trust assets. This included several items, to each of which a value was separately assigned, and the sum of which by a correct addition was given as $5,753.44.

The bond was filed on or about its date and duly recorded. the judge of probate indorsed upon it "Estate of John Goodsell. Probate Trustee Bond. Accepted March 10, 1894. Recorded Vol. 12, Page 229." This memorandum, under our somewhat informal probate practice, must be deemed equivalent to a decree, duly recorded, to the effect that the bond was accepted and approved as the probate bond of Rowland B. Lacey, as trustee of the special fund created by the will. It bound the signers, therefore, only for his future fidelity as such trustee.

The original amount of the special fund to be held in trust was $5,689.73. By his account rendered February 28th, 1894, it is stated as then being $5,753.44. For that sum he was bound to account annually before the Court of Probate. General Statutes, § 498; Prindle v. Holcomb, 45 Conn. 111, 119.

He was also bound to account for that sum, should he cease to be trustee, to his successor in office, or to leave the fund, in case of his decease, in such a condition that his executor or administrator could account for it.

These obligations he did not fulfill. He filed no annual accounts during the three years that elapsed before his decease; and he left the fund, at his death, so impaired, that his executor was able to turn over to his successor in the trust little more than a third of its original amount. The deficiency, therefore, their bond holds the defendants to make good.State v. Howarth, 48 Conn. 207, 213; Crocker v. Dillon,133 Mass. 91, 99.

It is immaterial that the Goodsell notes were never proper securities in which to invest trust funds, and so that he had failed in duty, either as an executor or as trustee, in respect to them, before the bond was given. Had the attention of the Court of Probate been called to their character when the account of 1894 was filed, its duty would have been to require him to substitute other securities to the same amount. Had accounts been filed in 1895, 1896 and 1897, as the law required, another opportunity would have been afforded for the examination by the court and the parties interested, of the items of credit, and might have led to similar action to that which should have been had on the former occasion.

But it is enough, if it stood alone, to justify the judgment, that the full amount of the fund was not left, at Lacey's decease, to come into the hands of his personal representatives for delivery to his successor in the trust. Merrill v. Phelps,34 Conn. 109, 112; Foster v. Wise, 46 Ohio St. 20, 16 Northeastern Rep. 687.

The judgment is based upon the assumption that the sum originally realized, in 1887, from the sale of real estate, namely, $5,689.73, was the amount for which Lacey, as trustee, was accountable. His account of February 28th, 1894, which showed an increase in the fund to $5,753.44, was the true starting point in computing the deficiency for which the defendants were responsible; but the failure to adopt it was for their advantage, and they cannot complain of it.

It is assigned for error that the Superior Court held that Lacey became trustee under the will before the approval of the bond by the Court of Probate. His appointment as trustee came from the testator. The bond recites that he had already accepted it. Whatever might have been the position of the obligors, had the bond not been approved by the court, an order of approval was in fact made on March 10th, and related back to the time when the paper was filed in court; thus making Lacey fully the trustee under the will from and after the latter date.

It was of no importance that he never filed a final administration account nor obtained an order for a transfer of the proceeds of the sale of real estate to himself as trustee from himself as executor. That might be material in a suit upon the probate bond which he filed originally, upon his qualification as executor. It cannot help the sureties on his second bond, which was given and accepted to secure his proper management of the trust fund.

The testator directed that the real estate should be sold at an early day, to be determined at the discretion of his executor. This empowered the executor to make the sale, no one else being named for that purpose. Whether the provision that the proceeds should "be invested in a common fund to be held and managed by my said executor, as trustee, for the period of twenty years," imports that Lacey should make the investments as executor or as trustee, is immaterial to the disposition of this cause. He was accountable for the whole amount of the fund, however it might have been invested. The overruling, therefore, of the defendants' claim that he acted in that respect as executor did them no injury.

The other reasons of appeal have been already shown to be insufficient or unfounded.

The appellee claims that none of the reasons of appeal were sufficiently stated, within the rule. Rules of Court, ed. of 1899, p. 94, § 13.

The sole assignment is that the court erred "in overruling the 1st, 2d 3d, 4th, 5th and 6th claims of law stated in paragraph 29 of the finding." This indicates fairly and fully the particular points of law which the appeal was designed to raise. It would have been mere prolixity to make six separate assignments of error; nor would anything have been gained by the formal statement that the court erred in overruling each of these claims of law, respectively. That was what the assignment obviously meant, as it stands.

The appellee also complains that its claims of law are inaccurately stated in the finding, and asks a correction at the hands of this court.

The finding was filed on Tuesday, May 29th. Under Public Acts of 1897, p. 889, § 8, the appellee had until Tuesday, June 5th, in which to move in the Superior Court for its correction by the trial judge. But on Tuesday, June 5th, the term of this court to which the appeal had been taken was to open, and it would be at least doubtful if such a motion could be considered and disposed of in season to put the record in its final form for submission to us upon that day.

An appeal, as soon as it is perfected, transfers the cause to the appellate court for all purposes incident to the full exercise of appellate jurisdiction. Huntington v. McMahon,48 Conn. 174, 195; Vincent v. McNamara, 70 id. 332, 339. If the record of the proceedings in the court below is at the time so complete as to present sufficiently the questions of law which the appellant desired to raise here, it only remains for the clerk to certify and transmit it. If it is not thus complete, it remains for the clerk or the trial judge, as the case may be, to supply whatever is necessary. Such services, on the part of the clerk, will be simply clerical. On the part of the judge they will also be clerical rather than judicial. Johnson v. Higgins, 53 Conn. 236, 237. His object will be to state for record such facts and events as may have led up to the judgment and are necessary to show whether the appellant is right or wrong in claiming that the law has been transgressed to his injury during the progress of the cause. He acts as an historian. So far as statutes may authorize, or the permission of this court, expressed in terms or implied by practice, may extend, he can rectify his finding, if in any respect it be incomplete or incorrect, pending the appeal. New HavenSavings Bank v. McPartlan, 40 Conn. 90, 92. It can also be rectified by authority of this court. The ordinary procedure to obtain such action here is prescribed in the Public Acts of 1897, p. 891, § 12. This section is an application to all appeals of a rule of practice as to motions for a new trial which had been previously formulated and adopted by this court. Practice Book, p. 260, § 5. Its provisions are directory in their nature. In the case at bar, the appellee could not comply with them. It could not have given the appellants twelve days' notice, prior to June 5th, of its intention to correct an error in a finding which was filed on May 29th. Had it been necessary, therefore, for the support of the case on appeal, to make the correction for which it moved before this court on June 2d, we should have accorded it an opportunity to be heard upon the merits of that motion. But as we hold it to be immaterial whether the defendants are liable for defaults which may have been committed by Lacey as executor, the correction, if the plaintiff is entitled to it, is not needed for its protection.

There is no error, and the motion of the appellee to rectify the appeal is denied.

In this opinion the other judges concurred.