228 Mass. 225 | Mass. | 1917
When the plaintiff was appointed conservator of Anna W. Meeker, she (Meeker) had a checking account, so called, with the defendant. Subsequently deposits were made by the plaintiff as such conservator to the credit of the account. There was evidence that before the death of the ward, June 30, 1913, and at the time of her death, the account stood on the defendant’s books, "Frederick K. Day, Conservator for Anna W. Meeker.” The executor of the will of Arma W. Meeker filed with the defendant a copy of his appointment and the defendant paid him, without the knowledge or consent of the plaintiff, the entire deposit, amounting to $18,254.84. This action is to recover that sum. In the Superior Court a verdict was ordered for the defendant. The case is before us on a report.
The provisions of law relative to the management of the property. of an insane person by a guardian apply to a conservator, R. L. c. .145, § 41, and he is to give such bond as is required of the guardian. St. 1910, § 95. The title to property purchased with a ward’s money ordinarily is in the ward’s name. The conservator has the care and management of it but does not own it; and the ward must be a party in all actions which concern the title. Lombard v. Morse, 155 Mass. 136. Taylor v. Lovering, 171 Mass. 303. Brock v. Rogers, 184 Mass. 545, But where a contract is made with the conservator in his own name, he binds himself but does not bind the ward or her estate; and when the title to property is in him personally, the right to recover it is in the conservator and such action must be brought in his name. Rollins v. Marsh, 128 Mass. 116. Brewster v. Seeger, 173 Mass. 281, 282. McLean v. Dean, 66 Minn. 369. Chapman v. Goodrich, 55 Vt. 354. McKinney v. Jones, 55 Wis. 39. Jolliffe v. Higgins, 6 Munf. 3. Thomas v. Bennett, 56 Barb. 197. Slaymaker v. Farmers’ National Bank of Lancaster, 103 Penn. St. 616.
Although the particular funds when deposited became the" property of the defendant trust company, Laighton v. Brookline Trust Co. 225 Mass. 458, if they were not deposited to the ward’s credit but were in the name of “Frederick K. Day, Conservator for Anna W. Meeker,” the defendant became indebted to the plaintiff. Under these circumstances it agreed to hold the funds sub
While the death of the ward ended the authority of the conservator, Loring v. Alline, 9 Cush. 68, the title to the deposit, if it stood in his name, belonged to the plaintiff; he was a creditor of the defendant and continued so after the ward’s death. The defendant could not legally deprive him of the money or pay it to another without his consent. If during the lifetime of Anna W. Meeker he could bring an action in his own name to recover the credit, the termination of the relation of conservator and ward did not deprive him of this right. In Brewster v. Seeger, supra, a note and mortgage of real estate were given to one Perry, “as he is guardian” of Elsie S. Adams, a minor. After she became of age and married, Perry assigned the mortgage. It was held that the assignment was valid; that as the legal title was in Perry he could transfer it, and the coming of age of the ward had no effect on it. McLean v. Dean, supra. Zachary v. Gregory, 32 Texas, 452. Chambless v. Vick, 34 Miss. 109. Huntsman v. Fish, 36 Minn. 148.
There is no suggestion in the record that the funds have been diverted, and depositing them in the name of the plaintiff as conservator of the ward instead of in the ward’s name does not amount to a conversion of the money. Brown v. Dunham, 11 Gray, 42. Tarbell v. Jewett, 129 Mass. 457. Peabody v. North, 161 Mass. 525, 528.
It is not necessary in this case to decide whether the executor or the conservator of the ward is entitled to a deposit standing in her name but under the control of the conservator and subject to his withdrawal during her lifetime before the adjustment of his accounts in the Probate Court. His authority terminated by the ward’s death; his only duty was to settle his accounts in the Probate Court and pay what remained to the executor. Even where the conservator has merely the possession or custody of the ward’s property, he has the right to have his accounts settled arid the amount due to or from him determined in the Probate Court before he can be called upon to pay the balance in' his hands, if
The report of the judge of the Superior Court states: “At the trial the allegations and facts set forth in the answer of the de- . fendant were admitted to be true.” The answer contains the statement, "that the defendant thereafter held said property and all subsequent deposits made to the credit of said account as the property of said Meeker, but subject to the control of the plaintiff and the court during the lifetime of said Meeker, provided said Day should so long be conservator of said estate.” The exact meaning of this statement in the answer is not clear. Its exact significance need not be determined because at a new trial the facts may be stated or found in plainer form. If it is a mere conclusion of law the plaintiff is not bound by it because of his agreement that the facts set forth in the answer were true. Even if it is a statement of fact, the ruling given was wrong because, notwithstanding the plaintiff’s admission, in view of the evidence, it was for the jury to say whether the contract was made with the plaintiff and the deposit stood in his name.
Against the objection of the plaintiff the defendant introduced a petition for partial distribution of the estate of Anna W. Meeker, including the money deposited with the defendant, to which petition the plaintiff was a party. This question was not raised by the answer and was inadmissible. Friedenwald Co. v. Warren, 195 Mass. 432, 434. Gilson v. Nesson, 208 Mass. 368, 370.
The defendant contends that the plaintiff is estopped from now claiming the fund because he was a party to the petition for distribution brought by the executor. Even if the question were open under the pleadings, the plaintiff’s rights against the defendant are not lost because of this proceeding. Jennings v. Wall, 217 Mass. 278, 281. Deans v. Eldredge, 217 Mass. 583.
It follows that there must be a new trial: and it is
So ordered.