Ensign v. Faxon

• Decision Date: 19 May 1916
• Citation: 224 Mass. 145,112 N.E. 948
• Parties: ENSIGN v. FAXON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

224 Mass. 145

112 N.E. 948

ENSIGN

v.FAXON.

Supreme Judicial Court of Massachusetts, Middlesex.

May 19, 1916.

Appeal from Supreme Judicial Court.

Proceedings in the matter of the guardianship of Josephine Faxon wherein Charles S. Ensign, Jr., guardian, filed accounts which were allowed by the probate court. From such decrees the ward appealed, and from the finding of the single Justice of the Supreme Judicial Court affirming such decrees, the ward appeals to the full bench. Affirmed in part, and modified in part.

Charles M. Bruce, of Boston, for appellant.

George M. Poland and Loring P. Jordan, both of Boston, for appellee.

RUGG, C. J.

This is an appeal by one who has been under guardianship as an insane person from a decree allowing the accounts of the one who has been her guardian. The items in the account which are in controversy fall into several groups and will be treated accordingly.

1. During guardianship, the ward personally retained an attorney at law, who rendered services in connection with her guardiaship. He brought first a petition in the probate court (see Willard v. Lavender, 147 Mass. 15, 16 N. E. 582; St. 1915, c. 151, § 6), and then an action at law for his services in this regard, both having now been disposed of finally. The guardian incurred expenses in the defense of his ward's estate against these proceedings. These are proper items for inclusion in the guardian's account. It has been found to have been his duty to protect his ward's estate by this defense. It is contended that at least so far as concerns proceedings in the probate court and an appeal in the supreme court of probate, the exclusive jurisdiction to allow costs and expenses is found in R. L. c. 162, § 44, ¹ and that since no motion for allowance of costs or expense was presented, and no allowance made, and the proceeding is ended, there are no means for reimbursing the guardian for his expenses. This contention proceeds upon a misconception of correct probate practice and the meaning of the statute. The proper place for the allowance of all expenses incurred and disbursements made in the proper execution of his trust by a guardian, executor, administrator, trustee, or other fiduciary appointee of a probate court is in the account of his administration in the probate court. Those are matters relating to the management and disposal of the corpus of a trust which is under the control of the probate court. They are probate affairs. They should be settled by the probate court in the exercise of its general power of supervisions over receipts and disbursements of the estates of its wards. The examination and allowance of the accounts of its appointees is the particular proceeding appropriate for their adjudication.

R. L. c. 162, § 44, has no effect upon this general proposition. That statute simply gives power to the probate court or Supreme Court of probate in appropriate instances to tax costs and expenses to either party as against the other or out of the estate. It supplementsthe inherent power of those courts. In instances where costs and expenses are sought by a defeated party out of the estate, or by a victorious party against his opponent the statute offers the only channel by which an award relating thereto can be made. But that statute in no degree narrows or impairs the general powers of a court of probate. For example, one appointed executor of a will, who is obliged to confront a contest in which he finally prevails, necessarily incurs costs in securing the attendance of witnesses and expenses in retaining counsel. In the ordinary case these need not be determined as a part of the proceedings for the proof of the will. The more appropriate proceeding in which to settle such matters is in the petition for allowance of his account. These are expenses which he has incurred in administering the estate. He ought to pay them like any other similar debt and then present them for allowance in his account. That this must be so is apparent from a brief review of the statutes. Prior to the enactment of St. 1884, c. 131, the courts had no power to award counsel fees in contested probate matters to be paid out of the estate or charged against against the other party. Brown v. Corey, 134 Mass. 249. But those appointed executors who succeeded in getting the will allowed did not bear personally their expenses for counsel fees. These and other necessary disbursements were paid out of the funds of the estate and allowed upon a proper accounting. The enactment of the statute did not curtail the powers of the court in respect of its former jurisdiction, but rather extended its authority into a new field. A further reason why the probate court is the appropriate place for settling such matters is that the beneficiaries of the estate are entitled in general to be heard as to the reasonableness and necessity of all expenses of administration. A hearing upon the account is the only convenient occasion for their appearance.

Nothing contrary to this view was decided or intimated in Lucas v. Morse, 139 Mass. 59, 29 N. E. 223. In that case there was a petition by cestuis que trustent for accounting by a trustee, and later for his removal. After those proceedings were ended by final decrees, the original petitioners sought to get their expenses incurred therein paid out of the estate. Of course the petition was dismissed. That decision affords no countenance to the proposition either that a fiduciary appointee of a probate court cannot charge all his expenses rightly incurred in the execution of his trust in the account to the court of his administration or that that court is deprived of jurisdiction to pass upon such items. See R. L. c. 150, § 14. These items were allowed rightly in view of the findings of the auditor.

Another group of items challenged is for expenses and disbursements incurred by the guardian in opposing in the probate court the petition of the ward to be discharged from guardianship. These items were allowed by the probate court and by the single justice. The evidence is not reported. Although the auditor's report is printed in the record (see Davis v. Gay, 141 Mass. 531, 6 N. E. 549), it nowhere is stated that this was the only foundation for the decree entered by the single justice. The decree can be reversed on this point only if as matter of law these items could not have been allowed. It cannot be said as matter of law that under no conceivable circumstances could there be ground which would justify the guardian in presenting evidence on this issue to the court of first instance. There might be a special direction or request from the judge to develop the facts or other conditions which would make such course proper. Perhaps it would be his duty in any event to present the facts to that court. These items must stand.

Other contested items relate to...