The sun., 1919-07-01


FIRST codicil again reiterated the direction
that the said shares, accounts and
transactions pertaining thereto shall be
kept entirely separate and distinct and
shall never be mixed or mingled.
THE trustees have entirely ignored
this positive provision OF the Will. BY
thus doing II 10 claimed the respondent,
George ]. Gould, was able to enter into
the financial transactions above referred
to. All the papers submitted show that
Inc has had the entire estate practically
under his control.
THE failure to create the six separate
trusts was in defiance Of the most posi-
tive directions Of the testator; 1t tended
Ito violate the statute against perpetuities
land defeated tho entire plan OF the tes-
tator In the distribution Of his estate. IL
deprived and continues to deprive each
beneficiary of the protection and security
which should have followed the separa-
tion of his or her fund.
| There Is no vivid excuse nor justin
cation shown in the papers for the FALL
ure and continuous refusal OF the trus-
tees to obey the express instructions OF
the testator to divide the estate Into six
separate trusts"
Tho opinion stated also that there was
another charge against the trustee.
George ]. Gould, involving the sale OF
I210,02 shares OF the capital stock or
the Western Union Company. and the
acceptance by George J. Gould Of $500
I401. II as a commission and secret pront
lon the sale of the stock belonging to the
ESTATE Of which he was trustee.
Thomas l.. Chadbourne. attorney for
IMr. Gould. acted as his agent In the
transaction and negotiated at George
lGould's request the sale OF this stock at
ss5 a share. including a bonus Of $40
share. Chadbourne received commits
sion on the whole transaction OF $1So'-
o9s, which he paid Mr.. Gould and OF
which Gould returned to him S125,0OO.
making the trustees secret commission
1890, t0i.71.
Repays Commissiont No Interest.
George ]. Gould kept that sum-" con-
tinued Justice Whitaker, for a period OF
Eight years and made no mention OF H.
mot until after the accounting proceed
lings had been begun and the facts AL
LEGGED in the answer OF Frank J. Gould,
did George J. Gould pay over this COM
mission to the estate. and even then he
paid no interest and even now positive
liz refuses to pay over any interest.
Helen G. Shepard was never con-
suited concerning the sale OF western
Union stock and had no knowledge OF
the transaction"
Justice Whitaker commented that his
repayment OF this sum to the estate
Ia fter having retained II for eight years
furnishes no Justification or excuse and
THAT repayment was only made after dis
covery Of tho wrongs by those whose
interests were adversely affected. JUS
tice Whitaker refers also to this trans
| action as Debated restitution Nnder
pressure or apprehension" He added
| hat II was the discovery OF the wrong
" others that seemed to awaken Mr..
" iouid's conscience.
| Justice Whitaker said "the trustee,
! George ]. Gould, aided by his counsel.
| seeks to justify this transaction as a
legal, ethical and proper act. number
| lof cases are cited by counsel. none or
which, however. in the opinion of this
court, justify the respondent. A trustee
must act in good faith and will not be
| permitted to use his trusteeship for his
individual advantage. benefit or profit"
| In alluding to that provision in the
| testator's will granting Mr.. Gould com
pensation OF $4,000 a year for acting
as trustee Justice Whitaker assumed
| that probably the special legacy of
$4,000, 900 left to George J. Gould had
been taken into consideration when the
amount OF compensation was hxed.
Two Funds Mixed by Trustees.
The third justifiabie -ause for COM
plant against George Gould was stated
by Justice Whitaker in these words:
"It liz also further conceded that
| George ]. Gould has continuously min
gled the trust funds with his own funds
and used them as II they were his in
div!dual property. As a matter OF fact
he has stated under oath that he con-
LIT hat he ctntn tnu I'd m
estate funds and property a debtor and
| creditor relation and that he so acted.
THE foregoing admitted negative and
Affirmative acts, in the opinion OF this
court. not only justify but require a
court OF equity to summarily remove the
trustee guilty OF and primarily to blame
for them. Especially IL this true when
the trustee not only justifies but also
maintains that such negative and af-
firmative acts are in no way violation
OF his duties as trustee. and in his prayer
for relief in this action for an account
ing he specifically requests the court TO
confirm and approve these improper acts,
The only inference to be drawn from this
position taken by the trustee is that he
is either entirely ignorant or boldly de-
FAINT of the principles governing the ad-
ininistraton OF trust estate
Technical objections made in behalf OF
the Justice, who held that the action
was properly presented. The Justice
then continued:
Had the respondent obeyed the ex-
pressed instructions Of the will and d.
vided the estate into separate trusts
they would have had no interest in this
action because the respondent would no,
have been a trustee OF the fund in which
they had an interest. By raising the
question Failure to serve notice upon
certain remaindermen) he is really try
Ing to take advantage OF his owr
wrong"
Justice Whitaker referred to the fact
that neither Lady Decies who wal
Vivian Gould nor Marjorie G. Drexel
also a daughter OF George ]. Gould, had
appeared in the proceeding.
Justice Overrides Objections.
Justiae Whitaker upheld the power &c
remove a trustee in accounting proceed
ings and denied the contention OF George
| J, Gould's counsel that the motion had