Kimball v. Perkins

130 Mass. 141 | Mass. | 1881

Gray, C. J.

A guardian has not, as an administrator has, the legal title in the property of which he is the custodian. Harding v. Weld, 128 Mass. 587, 591. The guardianship had been terminated by the death of the ward, and the object of settling the account of the guardian was to ascertain what estate and effects of the ward remained in his hands and should be paid over or delivered to the administratrix of the ward. Gen. Sts. c. 109, § 16, cl. 4. The guardian had invested funds of the ward in a certain note and mortgage, and had tendered this note and mortgage to the administratrix, who had refused to receive them. In his account, he charged himself with a balance in money, invested as particularly stated in a schedule exhibited with the account; and that schedule, and consequently that balance, were made up by computing this note and mortgage at their full amount.

Even if this account should not be considered a final account, and if the allowance thereof as rendered might not preclude the court, upon the rendering of a future account, from inquiring how far the guardian should be charged with any loss by reason of this investment, yet it was within the authority of the Probate Court, and of this court as the Supreme Court of Probate, upon the objection of the administratrix to the allowance of this account, to inquire into the propriety of this investment, and, upon being satisfied that it had been negligently and improvi-. dently made, and that the note and mortgage were of less value than as stated in the schedule, to charge the guardian with the full amount thereof in money, and thus prevent future controversy between the guardian and the ward’s representatives as to this matter. Gen. Sts. c. 98, § 12. Boynton v. Dyer, 18 Pick. 1. Blake v. Pegram, 101 Mass. 592, 598.

The decree of the Probate Court must therefore be modified according to the opinion of the justice of this court before whom the cause was heard.

Decree accordingly.