Opinion
No. 4893.
Argued January 3, 1961.
Decided March 7, 1961.
1. Where the statement of facts, upon which a reserved case was transferred and decided in the Supreme Court, was agreed to by all the parties, a later motion by one of the parties to amend the agreed statement must be addressed to the Superior Court.
2. A plea of res judicata, to defendants' motion for relief from the agreed statement of facts and to a petition to vacate certain orders of the Superior Court, which denied none of the defendants' allegations was considered as admitting the facts contained therein for the purpose of determining whether the issues presently raised were previously determined in the former transfer.
3. Such plea of res judicata was not as a matter of law a bar to defendants' motion to the Superior Court for relief from the agreed statement of facts before the Supreme Court on the prior transfer where the errors contained in the agreed statement were not discovered until after the prior transfer was decided.
4. Where is was decided in a prior transfer upon an agreed statement of facts that certain numerous accounts of a trustee which were filed and allowed over a long period of time in reliance upon an early and uncontested decree of the Superior Court were not now open to question and it was discovered subsequent to the rendition of the opinion that by mutual mistake certain accounts listed in the agreed statement as having been filed and allowed had not in fact been allowed, a plea of res judicata was no defense as a matter of law to a petition for disallowance and dismissal of such accounts.
MOTION, for relief from an agreed statement of facts and PETITION, to vacate all orders and decrees allowing accounts of Phillips Exeter Academy, as trustee, and to disallow and dismiss all accounts filed by it.
The above relate to the administration of a trust created by the will of Joseph C. Hilliard who died on February 12, 1905, and of which the Academy was appointed trustee by decree of the Superior Court for Rockingham county in 1917. The pertinent provisions of deceased's will and of a second codicil thereto as well as other material facts are contained in Phillips Exeter Academy v. Gleason, 102 N.H. 369.
The latter case was a petition for instructions and advice by the Academy as trustee and a prayer by the defendants for a declaratory judgment as to the rights of the life beneficiaries under the will and for an accounting by the plaintiff of its administration of the trust estate. The principal questions of law transferred without a ruling and answered in the affirmative were the following: "Did the Superior Court have jurisdiction (a) to appoint and qualify the plaintiff, Phillips Exeter Academy as trustee; (b) to allow the annual accounts filed by the trustee; and (c) are the decrees of the Superior Court allowing the annual accounts of plaintiff binding on the parties." Id., 374, 380.
The above questions were transferred on an agreed statement of facts of which paragraph 6 reads as follows: "Thirty-six accounts have been filed and allowed by decree of the Superior Court and as to each of said accounts there has been notice by publication and personal notice to beneficiaries by registered mail and an opportunity to be heard and no objection has been raised as to the payment of Five Hundred Dollars ($500.00) annually out of income to Isabel M. Gleason by said Phillips Exeter Academy believing that it was acting in accordance with the terms of said second codicil; that a 37th and 38th account have been filed and are now pending." This court held that all thirty-six annual accounts filed and allowed in reliance on the decree of the Superior Court in 1917 appointing the Academy trustee were "not now open to question." Id., 376.
Thereafter the defendants filed in this court a motion "for Revision and Correction of Record and for Rehearing" on the grounds that "A re-examination of the record of these proceedings shows that Paragraph 6 of the Agreed Statement of Facts stating that 36 accounts have been filed and allowed by decree of the Superior Court is erroneous and based upon a misinterpretation of the record. The record shows that no accounts have been approved and allowed since the allowance of the 28th, 29th and 30th accounts on April 1, 1949. The record also shows that accounts Nos. 6 to 20 for the years 1924 to 1938 have not been allowed. In all, twenty-three of the thirty-eight accounts have not been allowed." This motion was denied.
Defendants thereafter filed in the Superior Court a motion for relief from the erroneous statements in said paragraph 6 alleging that these statements were "due to the mutual mistake of the attorneys representing the plaintiff and defendants in preparing and drafting the agreed statement of facts and reserved case and was not discovered until after the Supreme Court handed down its opinion." The Academy filed a special plea to this motion alleging that the decision of this court and the order denying defendants' motion for revision and correction of the record are a bar to the relief sought.
In the course of a hearing on the pleadings, the Academy, in response to inquiries by the Presiding Justice, admitted that the statements in said paragraph 6 of the agreed statement were erroneous as alleged by the defendants and admitted also that they resulted from a mutual mistake not discovered until after the opinion of this court was rendered.
A further question transferred without ruling in Phillips Exeter Academy v. Gleason, 102 N.H. 369, was the following: "Is the $500 payable annually to Isabel M. (Fish) Gleason properly a charge on and payable from the principal or corpus of the trust estate and not from the income?" This court advised the trustee "that the annuity bequeathed to Isabel should be paid from the corpus effective in the future and beginning with the period since the allowance of the thirty-sixth annual account" (p. 379), since all accounts including the thirty-sixth had been held "not now open to question." P. 376.
In the second entitled action, which was not previously transferred, Isabel M. Gleason, as executrix of the will of Josephine Fish Pendergast, and Ralph B. Fish, both beneficiaries of the income of the trust administered by the Academy (for clarity called defendants herein) filed a petition to vacate all orders or decrees in said action allowing accounts of the Academy as trustee and to disallow and dismiss all accounts filed by it. This petition alleges in substance that the Academy, notwithstanding its duty to administer the trust in accordance with the terms of the will, paid the annuity to Isabel from the income specifically bequeathed to Josephine Fish Pendergast and Ralph B. Fish, instead of taking it from the corpus bequeathed and devised to it as residuary legatee without disclosing to the beneficiaries all material facts in connection with these transactions. It further alleges that the beneficiaries relied on the Academy, as trustee, for the proper administration of the trust estate and assumed that the accounts filed by the trustee were in all respects proper and that the trustee, in the use of the income of the trust estate to pay the annuity to Isabel without informing them of the material facts so that the beneficiaries might form a sound judgment as to whether their rights were, or might be, affected, was guilty of breach of trust and a fraud upon the beneficiaries entitled to the income of the trust estate.
The Academy filed an identical plea to this petition that the decision of this court and the order denying defendants' motion for revision and correction of the record and for rehearing in Phillips Exeter Academy v. Gleason, supra, are a bar to the relief sought.
The Trial Court (Griffith, J.) reserved and transferred without ruling the questions "whether the pleas in bar of Phillips Exeter Academy as a matter of law set forth a defense to the defendants' motion and petition."
Perkins, Holland Donovan (Mr. Donovan orally), for Phillips Exeter Academy.
George R. Scammon for Ralph B. Fish.
Burnham B. Davis and Upton, Sanders Upton (Mr. Robert W. Upton orally), for Isabel M. (Fish) Gleason, individually and as executrix of the will of Josephine Fish Pendergast.
Ernest R. D'Amours, Director of Register of Charitable Trusts, pro se, furnished no brief.
The Academy has filed identical pleas of res judicata to defendants' motion for relief from the agreed statement of facts in the first action and to their petition in the second action to vacate all orders or decrees allowing the Academy's accounts and to disallow and dismiss them. As these pleas deny none of defendants' allegations they are to be taken as admitted for the purpose of deciding the issues submitted to us by the Superior Court. The test to determine whether the Academy's motions to dismiss should be granted because the matters of defendants' motion and petition are res judicata is to inquire whether the issues now raised were decided in Phillips Exeter Academy v. Gleason, 102 N.H. 369. See In re Moore, 99 N.H. 209, 210.
Considering first defendants' motion for correction, this court had no authority on motion of one of the parties to amend a statement of facts agreed to by all the parties. Bell v. Twilight, 17 N.H. 528. The only course open to the defendants was to apply to the Superior Court for relief. Dame v. Woods, 73 N.H. 391, 392. The order of this court summarily denying defendants' motion for correction of the agreed statement can be explained by the established rule that such relief was to be sought in the Superior Court. Dame v. Woods, supra; Lampesis v. Comolli, 101 N.H. 491, 493.
By its plea and in the course of the hearing on the pleadings in Superior Court the Academy admitted that there were erroneous recitals of fact in paragraph 6 as alleged by defendants and also that they were due to the mutual mistake of the attorneys which was not discovered until after this court handed down its opinion in Phillips Exeter Academy v. Gleason, supra. These issues were not decided in the prior decision. The Academy's plea in bar does not as a matter of law set forth a defense to defendants' motion for relief from the agreed statement of facts.
We now consider defendants' petition in the Thompson case to vacate all orders or decrees allowing accounts of the Academy as trustee and to disallow and dismiss all such accounts. In substance the defendants allege that the Academy as trustee paid the annuity to Isabel M. Gleason out of income specifically bequeathed to Josephine Fish Pendergast and Ralph B. Fish instead of taking it from the corpus bequeathed to the Academy without disclosing to these beneficiaries all material facts in connection therewith which the Academy knew or should have known; that these beneficiaries relied upon the Academy as trustee for the proper administration of the trust estate and that in the use of such income to pay Isabel without informing the beneficiaries of the material facts the Academy was guilty of a breach of trust and a fraud upon such beneficiaries.
The Academy's plea was that the petition should be dismissed because these issues had been decided by the opinion in Phillips Exeter Academy v. Gleason, supra, and the denial of defendants' motions made to and denied by this court in said case.
In this instance also the fundamental question to be determined is whether the above case decided the issues now raised. In re Moore, supra, 99 N.H. 209, 210. Our decision in that case was that "The decree of the Superior Court of 1917 remained unquestioned until the present proceedings. The 1917 decree became, the law of the case and the accounts filed and allowed in reliance thereon, including the thirty-sixth annual account, are not now open to question." (Emphasis supplied). This decision was based on an agreed statement of facts, paragraph 6 of which stated that "Thirty six accounts have been filed and allowed by decree of the Superior Court and as to each of said accounts there has been notice by publication and personal notice to beneficiaries by registered mail and an opportunity to be heard and no objection has been raised as to the payment of Five Hundred Dollars ($500.00) annually out of income to Isabel M. Gleason by said Phillips Exeter Academy." (Emphasis supplied).
That opinion did not decide nor was an issue ever raised regarding the status of, and rights of the parties in, the twenty-five accounts which it is now admitted were never allowed by the Superior Court. Therefore the Academy's plea in bar to defendants' petition does not as a matter of law set forth a defense thereto. McNish v. American Brass Co., 139 Conn. 44.
We are not called upon nor do we decide whether justice requires that defendant be granted the relief sought in their motion or petition with respect to the twenty-five accounts not allowed.
Remanded.
All concurred.