Forbes v. Allen

• Decision Date: 28 February 1922
• Citation: 240 Mass. 363,134 N.E. 244
• Parties: FORBES, Judge of Probate, v. ALLEN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

240 Mass. 363

134 N.E. 244

FORBES, Judge of Probate,

v.ALLEN et al.

Supreme Judicial Court of Massachusetts, Worcester.

Feb. 28, 1922.

Exceptions from Superior Court, Worcester County.

Action by William T. Forbes, Judge of Probate, against Frank P. Allen and others. The report of an assessor was confirmed, and defendants bring exceptions and move to dismiss the action. Motion denied and exceptions overruled.

The action was on a guardian's bond and was referred to an assessor, who filed a report in favor of plaintiff, which was confirmed by a justice of the superior court. It was stipulated in the superior court that the court should pass on the assessor's ruling that the guardian had no legal right to make a compromise by which he discounted a note and mortgage, the ruling excluding evidence that the matter of discounting the note and mortgage was taken up with one of the probate judges, and the ruling that the facts found relative to a tender did not constitute a defense.

Ralph W. Robbins, of Fitchburg, for plaintiff.

M. L. Lizotte and S. N. Salny, both of Fitchburg, for defendants.

RUGG, C. J.

This is an action upon a bond given by a guardian to the judge of probate. Judgment was entered for the plaintiff for the penal sum of the bond. The case was then referred to an assessor ‘to hear the parties and their evidence, assess the damages and report his findings.’ Several questions of law are presented in the report.

An assessor is not a species of auditor but a different kind of officer. Speirs v. Union Drop Forge Co., 180 Mass. 87, 89, 61 N. E. 825. Certain questions of law are stated in the report as having been raised before the assessor. Carew v. Stubbs, 161 Mass. 294, 37 N. E. 171, and cases there cited; McKim v. Titus, 182 Mass. 393, 65 N. E. 806;National Machine & Tool Co. v. Standard Shoe Machinery Co., 186 Mass. 44, 70 N. E. 1038;Hart v. Brierley, 192 Mass. 147, 78 N. E. 307. It is assumed in favor of the defendants, but without so deciding, that the questions of law which have been argued by them are properly presented and the case is considered on its merits.

The guardian for his ward had a note dated May 7, 1912, secured by mortgage, payable one hundred dollars and interest every six months. All installments and interest had been paid up to October 1, 1913, when the guardian accepted a proposition by the mortgagors to pay the note in full on discount of two hundred dollars, receiving one thousand four hundred fifteen dollars instead of one thousand six hundred fifteen dollars, the amount due on its face. When this offer was made, there were outstanding bills due from the ward, and money was needed also for other purposes. No approval of this settlement was obtained from the probate court.

The record is bare of any facts which justified the guardian in not collecting the amount of the note and interest. There is nothing to indicate that the note was not worth its face in cash or that it could not have been collected in full. Therefore, the guardian could not rightly cause the estate of his ward the loss of the two hundred dollars made by way of discount. It was to that extent a maladministration of the estate, for which the guardian and the surety on his bond are liable personally on the bond. If the guardian compromised the note for less than its face without the authority of the probate court previously obtained, he took his chances of being able to satisfy the appropriate tribunal afterwards that he exercised sound judgment in so doing. Blake v. Ward, 137 Mass. 94.Thayer v. Kinsey, 162 Mass. 232, 38 N. E. 360.Gardiner v. Thorndike, 183 Mass. 81, 66 N. E. 633. The assessor has found against him and there is nothing to show that there was error in this conclusion, no evidence being reported.

This point has been considered and decided as presented by the parties. However, the decree of the probate court in disallowing this discount in the final account of the guardian was conclusive upon the guardian and the sureties. The sureties are liable on the bond for any default of the guardian in settling ‘his account in the probate court’ and in paying over to the person or persons lawfully entitled thereto all the property ‘due from him on such settlement,’ that is to say, on the settlement of his account in the probate court. R. L. c. 149, § 1, cl. 6, Fourth; G. L. c. 205, § 1, cl. 6, Fourth. The accounts of the guardian must be settled finally in the probate court. McIntire v. Ensign, 232 Mass. 83, 85, 121 N. E. 642. The sureties upon the guardian's bond cannot try over again an item there adjudicated but must accept it as the basis of their liability, although they may show...