Day v. Old Colony Trust Co.

• Decision Date: 25 September 1917
• Citation: 117 N.E. 252,228 Mass. 225
• Parties: DAY v. OLD COLONY TRUST CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

228 Mass. 225

117 N.E. 252

DAY

v.OLD COLONY TRUST CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 25, 1917.

Report from Superior Court, Suffolk County; John F. Brown, Judge.

Action by Frederick K. Day against the Old Colony Trust Company. On report from the superior court after a directed verdict for defendant. New trial ordered.

Channing & Frothingham, John P. Jackson, Jr., and Howard V. Foulke, all of Boston, for plaintiff.

Samuel M. Child, of Boston, for defendant.

CARROLL, J.

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, and there was evidence that prior to 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 Anna 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 and 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, c. 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, 29 N. E. 205,14 L. R. A. 273;Taylor v. Lovering, 171 Mass. 303, 50 N. E. 612;Brock v. Rogers, 184 Mass. 545, 69 N. E. 334. 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, 53 N. E. 814;McLean v. Dean, 66 Minn. 369, 69 N. W. 140;Chapman v. Goodrich, 55 Vt. 354;McKinney v. Jones, 55 Wis. 39, 11 N. W. 606,12 N. W. 381;Jolliffe v. Higgins, 6 Munf. (Va.) 3;Thomas v. Bennett, 56 Barb. 197;Slaymaker v. Farmers' National Bank of Lancaster, 103 Pa. 616.

[5] Although the particular funds when deposited became the property of the defendant trust company (Laighton v. Brookline Trust Co., 225 Mass. 458, 114 N. E. 671, L. R. A. 1917C, 129), 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 subjectto his order and to pay on his demand; the title was in him, not in Anna W. Meeker, and on the defendant's refusal he could bring an action to recover the amount of the deposit. City National Bank v. Charles Baker Co., 180 Mass. 40, 61 N. E. 223. See Rollins v. Marsh, supra; Carr v. Leahy, 217 Mass. 438, 105 N. E. 445;Boone v. Citizens' Savings Bank, 84 N. Y. 83, 38 Am. Rep. 241.

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 Tex. 452;Chambless v. Vick, 34 Miss. 109;Huntsman v. Fish, 36 Minn. 148, 30 N. W. 455.

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, 37 N. E. 744.

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 guardian has merely the possession or custody of the ward's property, he has the right to have his accounts settled and 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 any, to the executor. He may pay the necessary expenses and retain the sums allowed by the court as compensation for his services, but these amounts are to be determined upon the allowance of his accounts in the probate court, and until these proceedings are taken the conservator holds possession of the property and is not liable to be sued at common law by the ward or her executor. McLane v. Curran, 133 Mass. 531, 43 Am. Rep. 535;Murray v. Wood, 144 Mass. 195, 10 N. E. 822;...