Day v. Nichols

228 Mass. 236 | Mass. | 1917

Pierce, J.

The conservator asks this court to direct a modification of the decree of the single justice, to the purpose and end that the defendant, John L. Nichols, as executor, be ordered to-pay to Frederick K. Day $2,007.81, the amount established to be due to Day by the final decree, and also, that Nichols personally be ordered to pay to the plaintiff the taxable costs and the reasonable expenses and charges incurred and rendered by him in the contests over his accounts, both in the Probate Court and in the Supreme Judicial Court.

The power of this court on appeal to "enter such decree thereon as the Probate Court ought to have entered ... or make any other order therein as law and justice may require,” R. L. c. 162, § 23, is necessarily limited to the issues heard and determined by the Probate Court, and the statute rightly cannot be construed to confer on this court original jurisdiction to determine rights and controversies not necessarily involved in the determination of the matters in issue before the Probate Court.

The question of the obligation of the estate to reimburse the conservator for payments made and expenses incurred on behalf of the ward, and the further question of any individual obligation of the executor on the facts manifestly were not and could not have been considered by the Probate Court and therefore an appeal cannot be considered by this court. The conservator must seek relief through the allowance of a supplemental account in the Probate Court. Munroe v. Holmes, 9 Allen, 244; S. C. 13 Allen, 109. May v. Skinner, 152 Mass. 328. Horton v. Robinson, 212 Mass. 248. The request to be allowed reasonable expenses and charges under R. L. c. 162, § 44, was denied rightly under the circumstances of this case, because the account allowed was not a final account or in the nature of a final account. Upon the determination of the action of Day v. Old Colony Trust Co. ante, 225, the relief can be sought in a supplementary account in the Probate Court. Ensign v. Faxon, 224 Mass. 145. Loring v. Wise, 226 Mass. 231.

On appeal the cases were sent by the single justice to a master "to hear the parties and report his findings to the court, together with such facts and questions of law as either party may request.” The master made findings of fact but made no report of the evidence. Upon the coming in of the report the executor, John L. Nichols, duly filed twénty-three exceptions thereto. He also filed a motion to recommit the report to the master with instructions to find specifically and in detail the dates, nature, kind and subject of the legal services of H. E. Bolles and of the conservator, Day. The single justice denied the motion to recommit, overruled the exceptions, and confirmed the report.

The first, second and third exceptions are but objections to the statements by the master of subsidiary facts descriptive of the conditions and circumstances of the ward, a knowledge of which is valuable if not needful to a clear understanding of the duties the conservator was required to undertake to perform. These exceptions were overruled rightly.

The fourth exception relates to a controversy between the executor and the conservator as to whether Nichols had agreed to pay the taxes of 1907 and 1908 as a part of the obligation of Nichols upon a note payable to the ward. The question is quite remote from any issue of accounting and the exception was overruled rightly.

The fifth exception relates to a claim made upon Nichols for certain travelling expenses, incurred, as the master finds, .by reason of attempts made by Day to collect the note of Nichols. These demands were not allowed and the exception was immaterial and was rightly overruled.

The sixth exception, relating to the finding of the master that it was prudent to carry a balance of $1,200 to $2,000, earning two per cent in the Old Colony Trust Company, cannot be sustained as clearly erroneous in view of the further finding of the master that the condition of the ward “was such that at any time” the conservator “might be called upon to defray the cost of doctors, nurses and attendants,” as also of the removal of the ward to an asylum and of treatment there.

The seventh and eighth exceptions are not argued and are treated as waived.

The ninth exception relates to certain presents of money and furs to the persons who had personal custody of the ward. The master finds these presents were made solely for what the conservator conceived to be the interest and benefit of the ward; that the conservator sought through the gifts to insure to the ward the solicitous care of attendants, and additional, continuous and patient watchfulness and devotion. The master also found that the expense to the estate was small, and that the advantages were of inestimable value to the ward. In these circumstances we are of opinion that the gifts or presents were wise and judicious expenditures of the property of the ward. This exception was overruled rightly. May v. May, 109 Mass. 252, 256.

The tenth and nineteenth exceptions relate to the reasonableness of any charge for expenses incurred in attending the funeral of the ward. There is nothing in evidence to show the amount of such expenses and it appears that there was a real necessity for such an attendance. The exceptions must be overruled.

The eleventh, twelfth and twentieth exceptions relate to the collection of money due on the policy of the Massachusetts Hospital Life Insurance Company and to the expenses incurred in so doing. An examination of the “Annuity in Trust” policy discloses that the principal sum was to be paid “to the said conservator or his successors” by the terms of the trust instrument. The collection of the money due and all reasonable expenses incidental thereto, were proper to be done and incurred. These exceptions must be overruled.

The thirteenth exception relates to the reasonableness of the charges of the conservator for his compensation. The evidence is not reported, the master was not bound to report it. Martin v. Barnes, 214 Mass. 29. The conclusions of fact follow from the reported evidentiary facts, they are affirmed by the single justice, they do not appear to be clearly wrong. The exception must be overruled. Marcus v. Dyer, 174 Mass. 64.

The fourteenth, fifteenth, sixteenth and seventeenth exceptions are either immaterial or are covered by previous exceptions and must be overruled.

The eighteenth exception is covered by the ninth exception and must be overruled.

The twenty-first exception is waived.

The remaining exceptions relate to the restatement of the acL count of the conservator made necessary by the findings of the master, and must be overruled.

The question of taxable costs on cross appeals rests in the discretion of the judge.

It follows that the decree must be affirmed.

So ordered.