Mealey v. Quinlan

263 Mass. 70 | Mass. | 1928

Braley, J.

The appellant, Michael D. Mealey, was appointed conservator of Michael W. Quinlan December 27, 1918, and continued to act until the death of his ward March 25, 1922. His second account showing a balance in his possession of $9,374.78 having been allowed February 16, 1927, Mary J. F. Fegan, executrix of the will of Michael W. Quinlan, demanded the balance and, payment not being made, she brought March 28, 1927, a petition asking that the conservator be ordered to transfer the fund to her. The conservator however on March 28, 1927, filed a petition for instructions to which the executrix and Elizabeth C. Quinlan, widow of the testator, were made parties. G. L. c. 215, § 6. The petition, while stating the claim and demand of the executrix, also alleges that in the management and administration of the ward’s estate it became necessary to sell certain real property under license from the court of probate, and that Elizabeth C. Quinlan claims that she released her rights of dower and homestead therein relying on the agreement of the conservator that if she would give such release he would use the proceeds of the sale for the payment of the indebtedness of the ward and the expenses of maintenance of herself and husband and all proper charges against the estate, and that upon the death of her husband any unexpended balance should become her absolute property to the exclusion of her children and all other persons having a right to share in the estate. It is further alleged that the widow has brought an action at law which is now pending to enforce her claim. The material allegations of the petition in so far as the rights of each defendant are concerned are admitted by the demurrer of Elizabeth C. Quinlan and in the answer of Mary J. F. Fegan. The conservator asked that he be instructed “as to whom payment of the fund should be made” and that the widow be enjoined from further prosecuting her action. The conservator on April 1, 1927, filed an answer to the petition of the executrix in which he set forth the same reasons for nonpayment as stated in his petition for instructions.

The decree allowing the account of the conservator, from which no appeal was taken, charged him with the amount of the ward’s estate remaining in his possession and this balance was on the record payable to Mary J. F. Fegan as executrix of the will of the ward. Day v. Old Colony Trust Co. 228 Mass. 225. It may be that the procurement by the conservator of the release of the dower and homestead rights of the ward’s wife enhanced the price which could be obtained and benefited the ward’s estate. The question, however, whether there was any obligation on the estate to make reimbursement, and the amount which should be allowed, could not be considered when the decree was entered. It was not presented by the account nor called to the attention of the court. The question, whether the conservator, if found liable to Mrs. Quinlan, or if an adjustment with her had been made, could have sought relief by a supplemental account asking for allowance of the amount, is not before us. See Day v. Nichols, 228 Mass. 236, 239. Bennett v. Pierce, 188 Mass. 186. G. L. c. 204, § 9.

The decrees dismissing the petition of the conservator and granting the petition of the executrix and that the conservator be ordered to file his final account are affirmed, and the order sustaining the demurrer of Elizabeth C. Quinlan to the petition of the conservator is also affirmed.

Ordered accordingly.