There was evidence that the trustees appointed by the testatrix, Maria Buck, in her will, assumed the execution of the trust. It appears that they received from the defendant several sums of money before the death of Emily Sweatt, presumably for her benefit under the trust. There is no intimation that they in fact declined the trusteeship created in the will. And as the ruling of the court dismissing the bill is consonant with a finding upon this evidence that they assumed the duties of trustees and were acting as such, it cannot be inferred as a matter of law or of fact that the defendant occupied that fiduciary relation to the cestui que trust. Under these circumstances, it is apparent that Emily Sweatt during her lifetime could not have called upon the defendant to execute the trust, or compelled him to account to her as her trustee. If he did not pay over to the trustees the fund bequeathed in trust, they — not she — could compel him to account upon a proper proceeding. As her administrator has no greater rights in this respect than she had, the plaintiff's bill was properly dismissed.
The fact that the testamentary trustees did not furnish an official bond to the judge of probate is not important. Their omission to do so immediately upon the decease of the testatrix did not impose upon the executor the duties of administering the trust. Nor did it operate as a declination of the trust by the parties named in the will as trustees, so as to give plausibility to the argument that the executor thereupon became a trustee in their stead; for to have that effect, it should appear that they neglected or refused "to give bond when required." P. S., c. 198, s. 4. There is no finding that they were required or requested to furnish a bond. In fact, there was no occasion for a bond until the fund, or a part of it, was turned over to them.
Whether the defendant is accountable to the trustees, and if so, for how much, and whether the trustees have fully performed the duties imposed upon them by the terms of the will, are manifestly questions which it is not advisable to consider at this time.
Exception overruled.
All concurred. *Page 302