Gay v. Carlstein

• Decision Date: 06 March 1928
• Citation: 262 Mass. 551,160 N.E. 343
• Parties: GAY v. CARLSTEIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

262 Mass. 551

160 N.E. 343

GAY

v.CARLSTEIN.

Supreme Judicial Court of Massachusetts, Suffolk.

March 6. 1928.

Appeal from Probate Court, Suffolk County; Arthur W. Dolan, Judge.

Proceeding by Arthur P. Gay, receiver, for the allowance of his account for Carl Carlstein, an absentee, under G. L. c. 200, opposed by the absentee. An item of the account was disallowed by the decree of the probate court, an receiver appeals. Decree affirmed.

A. P. Gay and Elliot B. Church, both of Boston, for appellant.

John Burke, of Boston, for respondent.

WAIT, J.

This is an appeal from the disallowance of an item in the account of a receiver for an absentee. G. L. c. 200. He received the greater part of the fund for which he was accounting under a decree made March 28, 1925, which directed him to collect certain sums, to make specified payments therefrom, and ‘to hold the remainder of the amounts so collected in his hands pending the final disposition [of the proceeding] or until the final order of the court.’ He made payment of the amount of the disputed item out of the remainder on March 1, 1927, and without further order of the court specifically directing it. He contends that he was justified because of a decree made November 29, 1916, upon an earlier petition in the same general matter; and that he is entitled to the allowance of the item because in making the payment he was satisfying a debt due from the absentee.

The decree of November 29, 1916, dealt with a fund of about $1,500 which the receiver then held and which the decree contemplated would be added to from time to time by amounts to be collected by him from the city of Boston as pension payments due the absentee. It directed payment forthwith of $1,200 to the receiver in his capacity as trustee under a certain agreement, ‘and from time to time hereafter such sums as may be available for that purpose, having regard to the orders of the court in this case at any time made, until the whole of arrears now accrued and hereafter accruing under said agreement shall have been paid and thereafter the sum of twenty-five dollars each month as of the eighth day thereof as provided in said agreement until the further order of the court.’ The agreement referred to was made in 1902 between the absentee, his wife, and a trustee under the agreement who has since become this receiver. No money was in fact received from the city of Boston between November 29, 1916, and May 28, 1925; and no order for payment was made by the court before May 28, 1925. Manifestly the decree of November, 1916, was superseded by that of May, 1925. The accountant cannot justify under the earlier decree.

The decree of May, 1925, gave no specific direction for payment by the receiver to the trustee under the agreement. Whether or not there were arrears due under the agreement, the explicit instructions to the receiver were that after he had made the several payments which the decree ordered, he should hold the remainder pending final disposition of the matter or further order of the court. This he did not do, unless there is force in his second contention. The absentee, Carlstein, after being away since 1912, returned to Massachusetts in 1925, and petitioned that the receiver be discharged. The city of Boston then held $5,100 accrued pension due Carlstein which it had refused to pay to the receiver because he had been unable to prove Carlstein alive and entitled to it. If payments under the agreement were due, the arrears were about $3,000. The receiver was ordered to obtain the $5,100; to pay Carlstein $2,000 forthwith, and $25 a month; and to hold the remainder as already stated. The matter then stood to await Carlstein's return from a visit to Sweden. He came back in 1927, and filed a new petition for discharge of the receiver. On this a decree was made March 18,...