Otterbeck v. Larson

<p>Abstract of the Decision.</p> <p>1. Trusts, § 222*—when allowance to trustee for litigation improper. Attorneys’ fees and expenses of a trustee in a litigation attacking the constitutionality of the Act of 1909, bringing trusteeships under jurisdiction of the Probate Court, held not properly allowed because not for the interest of the trust estate.</p> <p>2. Trusts, § 222*—when allowance improper. Allowance to trustee of $50 for attorneys’ fees improper where the trustee had already obtained sound and correct advice on the subject from another attorney.</p> <p>' 3. Trusts, § 222*—when allowance of fees in criminal proceeding against trustee improper. Allowance of atorneys’ fees in criminal prosecution against trustee properly disallowed as not being for benefit of trust estate.</p> <p>4. Trusts, § 222*—when allowance of solicitors’ fees improper. Allowance of solicitors’ fees in proceeding made necessary by unreasonable refusal of trustee to give proper information to beneficiaries as to management of- trust estate and by his improper disposition of considerable portions of trust funds properly disallowed.</p> <p>5. Trusts, § 221*—when credit properly not allowed to trustee. In an action for the beneficiaries against the trustee of an estate for the conversion and concealment of trust property of an estate under which he received a legacy, the fact that if defendant should account for all of the personal property of the estate there would be left, after the payment of all claims and costs, a balance applicable to the payment of his legacy, does not entitle him to be credited in his trusteeship account with the deficit between the amount of the legacy and the amount which could be credited thereto.</p> <p>6. Trusts, § 230*—when credit for interest improperly allowed. Credit for an overcharge for interest based on an allowance improperly made to trustee should not be allowed.</p> <p>7. Equity, § 431*—when rights waived by failure to object or except. In a suit by the beneficiaries of a will against the trustee for an accounting which is referred to a master to take account of the trust property, where complainants make no objection before the master as to certain items of credit and no exceptions to the court to the allowance of these items, they cannot be questioned on appeal.</p> <p>8. Trusts, § 221*—when trustee not entitled to credit for difference between the amounts collected and amounts for which sale could be made. In a suit by the beneficiaries under a will against the trustee for an accounting where it appeared that defendant sold accounts of the estate, hut that the beneficiaries objected to the sale on the ground of the amount received therefor, and that thereupon the trustee recalled the sale and subsequently was able to collect only a smaller amount, he is not entitled to a credit for the difference between the amount for which the accounts could have been sold by him and the amount collected.</p> <p>9. Trusts, § 233*—when investment not exercise of reasonable discretion. Evidence examined and held to show that an investment claimed by the trustee to have been made in securities of a foreign corporation was not proven, if made, was not in exercise of sound judgment and reasonable discretion.</p>