Lanman v. Lanman

206 Mass. 488 | Mass. | 1910

Braley, J.

By the first account, which was rendered about a year before the respondent became of age, the expenditures were shown to have been largely in excess of the income received, and it was not until some thirty-one years later, after the death of the guardian, that the petitioner as her executor presented the second and final account of her guardianship. The first account not having been allowed, when the final account came in the entire administration of the estate was opened for revision. Bennett v. Pierce, 188 Mass. 186. But as the respondent took no exceptions to the order affirming the decree allowing the first account, the balance shown by that account as due the guardian must be deducted from the amount subsequently received from the sale of the ward’s real estate. If this is done, there evidently remained a very appreciable sum coming to the respondent when he attained his majority, and for which he then might have demanded a probate accounting. Brooks v. Brooks, 11 Cush. 18. Murray v. Wood, 144 Mass. 195. Green v. Gaskill, 175 Mass. 265, 269, and eases cited. The second account, however, having included a large number of items which accrued subsequently, the respondent now invokes the application of the general rule, that the settlement of accounts between a guardian and his minor ward covers only transactions during minority, and contends that consequently these charges should be disallowed for want of jurisdiction. Woodbury v. Hammond, 54 Maine, 332. Pyatt v. Pyatt, 1 Dick. 285. Leonard's appeal, 95 Penn. St. 196. Matter of Allgier, 65 Cal. 228. It was undoubtedly one of the conditions of the guardian’s bond that when her ward became of age she should settle her accounts and pay over or deliver whatever property or effects might remain in her possession or be due upon the settlement. Gen. Sts. c. 109, §§ 6, 16. Pub. Sts. c. 139, §§ 19, 22. R. L. c. 149, § 1, cl. 6. But, the money having remained with the consent of the ward in the guardian’s possession and management, she was bound to account for it, and, while as to his person the guardianship had ceased, the trust still continued as to the property. Moore v. Hazelton, 9 Allen, 102, 104. Ela v. Ela, 84 Maine, 423. Pyatt v. Pyatt, 1 Dick. 285. Douglass v. Ferris, 138 N. Y. 192. If the respondent, being of age, had released the guardian by an instrument under seal, the adjustment would have been valid unless it appeared that he had been overreached or that fraud had been practised upon him. Wade v. Lobdell, 4 Cush. 510. Moore v. Hazelton, 9 Allen, 102.

We see no sufficient reason, therefore, why he could not enter into an agreement with his former guardian, that upon payment of a part in cash, and the acceptance of services to be rendered by her in the future, the indebtedness should be considered as discharged.

If evidently the accountant sought not only to terminate the trust and to relieve the estate of the guardian and the sureties upon her bond from further liability, but also to charge the respondent with an amount largely in excess of the money retained, the relation between the testatrix and the respondent as to the transactions not included in the settlement was that of debtor and creditor which cannot be adjusted by a court of probate. Accordingly the guardian’s account can be credited with only such and so much of the items as show a fulfilment of the agreement, and the single justice, upon evidence not reported having been satisfied that this had been done, properly ruled that nothing remained due to the respondent.

Exceptions overruled.