Blake v. Pegram, 101 Mass. 592

Blake v. Pegram

101 Mass. 592 | Mass. | 1869

Wells, J.

Under the provision of Gen. Sts. c. 117, § 14 giving to appeals from the probate court the same rights, as to hearing and determination, as belong to cases in equity, all queS. tians of law or fact may be brought before the full court foi *597argument and final decision. Such hearings, however, can be of but very little practical advantage, unless the previous investigations for which the law provides are so conducted as to present in the most precise and definite form practicable all questions which áre intended for discussion here. It is not in accordance with the purpose manifested in the organization of the two courts, and their relations to each other, that the original investigation of questions which may arise should be transferred at once to this court by a mere pro formd decree in the probate court. The statute provision, c. 117, § 10, requiring that the appellant shall file his reasons of appeal, indicates an adjudication in the probate court upon the objections made or questions raised there, and a statement of the grounds upon which the appellant proposes to seek a revision of that adjudication. The examination of the accounts of administrators, guardians and trustees belongs peculiarly to the probate court; and their transmission to this court without such examination there is especially objectionable.

' In these cases, the objections to the accounts, as originally filed, are made to serve for reasons of appeal. They are somewhat general; and there having been no adjudication upon the several items, the entire accounts must be examined and stated here. For this purpose the cases have been committed to a master, with directions to state the items of the accounts, from the allowance of which the appeals were taken, and such facts as might be deemed material to determine the points in controversy ; and also to report as to any errors in previous accounts settled in the probate court in the same cases. The master reports that “ the parties dispense with a statement of accounts, and desire the case to be submitted on the evidence and claims as recited.”

Upon this report, we are unable to make any final disposition of the cases; and the accounts must be recommitted for a more specific statement of the facts touching the points in dispute, and of the items in the several accounts in respect of. which objections are made or errors alleged. There are several questions, however, which are sufficiently presented upon the report *598as it stands, the decision of which may facilitate the further disposition of the cases.

The accountant contended that his former accounts, settled in the probate court, were not open to investigation in the settlement of the final accounts ; and upon that assumption refused to answer inquiries in relation to the items of those accounts.

By Rev. Sts. c. 67, § 10, (Gen. Sts. c. 98, § 12,) it is expressly provided that, upon the settlement of any account by an executor or administrator, “ all his former accounts may be so far opened as to correct any mistake or error therein; except that any matter in dispute between two parties, which had been previously heard and determined by the court, shall not be again brought in question by either of the same parties without leave of the court.” We are of opinion that the same rule is to be applied to guardians and trustees. Both are included in the provisions of Gen. Sts. c. 101, § 7, in regard to the conclusiveness of final accounts; and there is equal reason, if not stronger, for applying the rule to guardians, as to executors and administrators. It was acted upon by the courts before its adoption in the Revised Statutes, and was applied alike to executors, administrators, guardians and trustees. Stearns v. Stearns, 1 Pick. 157. Stetson v. Bass, 9 Pick. 27. Longley v. Hall, 11 Pick. 120. Boynton v. Dyer, 18 Pick. 1.

The fact that a guardian ad litem was appointed in order to give validity to the former decree does not protect the accounts from revision. The right to have errors corrected is recognized, even when the party interested was under no disability. And ;he assent of such a party to the account as settled in the pro-late court, or of a guardian ad litem in his behalf, does not preclude him from afterwards insisting upon the correction of errors therein, or from establishing the fact of the existence of such errors by the ordinary modes of proof and the examination of the accountant. Whatever may be the effect of such an assent, ‘t is not necessarily conclusive. Boynton v. Dyer, 18 Pick. 1.

It does not appear that any of the points now controverted, in relation to the former accounts, were put in issue, or so submitted to the court, at the time those accounts were settled, as *599to give to the matter thereof the force or character of res adjudicata. Saxton v. Chamberlain, 6 Pick. 422. Field v. Hitchcock, 14 Pick. 405. Wiggin v. Swett, 6 Met. 194. The accounts were therefore properly open to examination for the purpose of showing errors or omissions therein; to surcharge or to falsify. It follows that the accountant was bound to answer inquiries in regard to those accounts, and his management of the trust property ; and must submit himself to examination, if required, in the further hearings before the master. Saxton v. Chamberlain, 6 Pick. 422. Wade v. Lobdell, 4 Cush. 510.

The fact that some of the errors sought to be corrected consist of overcharges in accounts settled by this accountant jointly with a former cotrustee who is since deceased, and for whose receipts or misappropriations he ought not to be held responsible, does not alter the question of the right to open and revise the account. Wiggin v. Swett, 6 Met. 194.

The examination of the accountant may modify the questions presented as to many of the alleged omissions and errors in the accounts; and especially as to his investments, and his use of or neglect to invest the funds in his hands. There is no occasion at this time to express any opinion upon these questions, nor upon charges for compensation for alleged actual services, the character and extent of which were not disclosed, or not stated in the report. But there are some charges in the accounts which, upon the report as it now stands, are clearly excessive, and should be corrected by suitable corresponding credits in the final account.

1. The charge of one per cent, as a commission upon the valuation of the several interests of the parties to an exchange of estates negotiated during the lifetime of Mrs. Homer, by agents employed by her, and who received full commissions for the transaction out of the same fund, cannot be justified. This, upon valuations amounting to $173,750, would be $1,737.50.

2. The charge of $318.20 for effecting a lease, which was part of the same transaction, seems to stand in the same position.

*6003. The charge of $1000 for services in relation to the same matter, “ and commission on money received and paid out about sale of house and purchase of Haskins’s estate,” is objectionable in several respects, both of form and substance. So far as it stands in the same position with the charges already referred to, it should be rejected. So far as it stands as compensation for actual services rendered, as it is indefinite and apparently for the same services as the charges of $300 and $200 mentioned in the same clause of the report, it should be made definite and explained so that it may appear that necessary and proper services were rendered, comnensurate with the charges made therefor.

4. The charges for particular services are not to be disallowed without some proof that they are excessive, or that the services were not such .as justified any charge beyond the general charge of commissions. The appellants, who seek to correct errors in former accounts, must not only point out the alleged errors, but must show that they are such. For this purpose, they are entitled to the explanations and answers of the accountant. .

5. The commission of five per cent, upon income received as guardian, in addition to a like sum charged upon the same money as received in the capacity of trustee, is manifestly excessive. Such a commission upon income received and paid over is allowable only as a' convenient measure of compensation for services supposed to have been actually rendered. B implies something more than mere nominal service and the responsibility of the trust. There is no rule of law and no principle of right by which such commissions are to be charged or allowed without regard to the rendition of actual services therefor. When the same person is both guardian and trustee, it would be a reproach to the law, and to the courts charged with the protection of such trusts, to allow him to charge full compensation in both capacities for the same service.

The other items require a more particular examination and report before they can be satisfactorily disposed of. The cases are accordingly Recommitted to the master.