Ensign v. Faxon
| Decision Date | 02 March 1917 |
| Citation | 226 Mass. 218 |
| Parties | CHARLES S. ENSIGN, JR., guardian, v. JOSEPHINE FAXON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
January 12, 1917.
Present: RUGG, C.
J., LORING, BRALEY DE COURCY, & CARROLL, JJ.
Guardian, Of insane person.
Where the guardian of an insane person has been discharged by a decree of the Probate Court adjudging his ward to be sane and in his final account as guardian an item relating to a certain mortgage for $5,000 is disallowed by the court as an unsuitable investment, such guardian is entitled to the possession of the mortgage and the mortgage note, he being liable to his former ward for the amount of the principal and interest of the mortgage note.
APPEAL from a decree made by a single justice of this court after the issuing of the rescript in the case of Ensign v Faxon, 224 Mass. 145 , as described in the opinion.
The decree was made by Crosby, J. By it the decree of the Probate Court was modified by disallowing certain items of the guardian's eighth and final account thereby allowed. Among the items as to which the decree of the Probate Court was affirmed was item 83 in Schedule B of that account, which was as follows:
"83 [Aug 1914] 4 Mortgage Note of Elizabeth & Edward J. Doherty dated Dec. 31, 1910, secured by mortgage of real estate on Malvern Terrace, Medford, 5,000."
The statement of the auditor appointed by the Probate Court in regard to this item is quoted in the opinion.
The decree of the Probate Court in regard to this item was as follows: "It is decreed that said account be allowed, as modified by said auditor's report i.e., Item 83 of Schedule B for $5,000 is disallowed and the accountant is charged with this sum with interest at five per cent, from the date to which the mortgage named has been paid, in addition to the balance as stated in Schedule C of this account, and in addition to the modifications of the fifth, sixth and seventh accounts; and that all of the objections made to the rulings and admission of evidence set forth in the report of the auditor, applying to this and previous accounts are overruled."
Charles S. Ensign, junior, the guardian, appealed from the decree made by the single justice.
G. M. Poland, for the guardian, submitted a brief. C. M. Bruce, for Josephine Faxon.
DE COURCY, J. On the petition of Miss Faxon, alleging that she was sane, the Probate Court on April 15, 1914, discharged Mr. Ensign as her guardian. On August 4, 1914, while his sixth, seventh and eighth accounts were pending in the Probate Court, and his appeal from the decree discharging him as guardian was pending in the Supreme Judicial Court, he left with Miss Faxon certain bank books and securities held by him, although she declined to accept them. Among them was...
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Ensign v. Faxon
...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 cov......
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