Ensign v. Faxon

• Decision Date: 09 January 1918
• Citation: 118 N.E. 337,229 Mass. 231
• Parties: ENSIGN v. FAXON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

229 Mass. 231

118 N.E. 337

ENSIGN

v.FAXON.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 9, 1918.

Appeal from Superior Court, Middlesex County.

Petition for allowance of account by Charles E. Ensign, Jr., guardian; Josephine Faxon moving to dismiss the account. From decree allowing the motion and disallowing the account, petitioner appeals. Decree reversed, and account ordered to stand for hearing.

Geo. M. Poland and Loring P. Jordan, both of Boston, for appellant.

Chas. M. Bruce, of Boston, for appellee.

RUGG, C. J.

This is an appeal from a decree disallowing the ninth account of the petitioner as guardian of the respondent. The reason for this decree was stated in it to be that since the guardian has ‘rendered a final account passed upon by the court, there is no warrant in law, as the case now stands, for a further accounting.’ The account so passed upon by the court was entitled ‘Guardian's Eighth and Final Account.’ Questions respecting it came to this court in 224 Mass. 145, 112 N. E. 948, and in 226 Mass. 218, 115 N. E. 296. The decree was final as to all matters within its sweep. The account to which it related, according to its statement of period covered, ended with August 4, 1914. The final decree on it was entered in this court on March 22, 1917. It contains no recital that it comprehends all matters relating to the estate of the ward after the date when the account was filed. It does include in the balance due from the guardian interest computed to March 20, 1917. It would have been within the power of the single justice to have made an adjudication as to the disbursements and charges of the guardian in connection with that account up to and including the termination of proceedings respecting it. A decree may be made in this particular final, provided it appears by its express terms that that matter has been considered and disposed of. Thus an end may be put to litigation touching it. That is the practice in equity. Bauer v. International Waste Co., 201 Mass. 197, 87 N. E. 637;Day v. Mills, 213 Mass. 585, 100 N. E. 1113;Collins v. Snow, 218 Mass. 542, 545, 106 N. E. 148;Hanscom v. Malden & Melrose Gaslight Co., 220 Mass. 1, 9, 107 N. E. 426, Ann. Cas. 1917A, 145. Probate practice in this court follows that of equity so far as practicable and applicable. Chapman v. Chapman, 224 Mass. 427, 428, 113 N. E. 359, L. R. A. 1916F, 528. It is in harmony with the decision between these parties in 224 Mass. 145, 112 N. E. 948. But the decree on the ‘Eighth and Final Account’ does not show that this was done. The accountant, therefore, in justice ought to be allowed an opportunity to have his day in court at some time upon the question whether he ought to be allowed for his expenses incurred in connection with that litigation. While other parties to that litigation are precluded from seeking their costs and expenses after its conclusion (R. L. c. 162, § 44; Lucas v. Morse, 139 Mass. 59, 29 N. E. 223), the guardian not having been required and not having elected to have those...