Loring v. Old Colony Trust Co.

• Decision Date: 11 June 1917
• Citation: 116 N.E. 730,227 Mass. 392
• Parties: LORING et al. v. OLD COLONY TRUST CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

227 Mass. 392

116 N.E. 730

LORING et al.

v.OLD COLONY TRUST CO. et al.

Supreme Judicial Court of Massachusetts, Middlesex.

June 11, 1917.

Appeal from Supreme Court, Middlesex County; George F. Lawton, Judge.

Augustus P. Loring and Harold J. Coolidge, trustees under the will of Israel Lombard, and the Old Colony Trust Company, trustee under various wills and a compromise agreement, appeal from probate court decrees disallowing certain expenditures as charged in appellants' accounts. Decrees reversed.

Loring, Coolidge & Noble, of Boston, for appellants.

Henry L. Burnham, of Boston, for appellants accountants.

S. R. Wrightington, of Boston, for guardian ad litem.

BRALEY, J.

The individual appellants are trustees under the will of Israel Lombard, while the trust company is trustee under various wills, and an agreement of compromise. It is unnecessary to recite the provisions of these instruments. The only question which is common to all the appeals is whether the charges for services of guardians ad litem appointed solely to represent ‘persons unborn or unascertained’ having possible future interests in the trust funds or property should be taken out of income, or borne by principal. The necessity of the appointment and reasonableness of the charges are conceded. The court of probate in the first case on the trustee's fifth account having ordered the amount charged to income while in the other cases the decrees allowing the several accounts disallowed the items as charged against principal without prejudice to any right of the trustee in subsequent accounts to charge these items against income, the accountants appealed to this court. By R. L. c. 150, § 22, where an account has been filed the items of which the court of probate finds should be finally determined and adjudicated. and--

‘* * * the interest of a person unborn, unascertained, or legally incompetent to act in his own behalf, is not represented except by the accountant, the court shall appoint a competent and disinterested person to act as guardian ad litem or next friend for such person, and to represent his interest in the case. The person so appointed * * * shall be entitled to such reasonable compensation for his services as the court allows.’

See Parker v. Boston Safe Deposit & Trust Co., 186 Mass. 393, 394, 395, 396, 71 N. E. 806. And by R. L. c. 145, §§ 23, 24, as amended by St. of 1906, c. 452, § 2:

‘The reasonable expenses of such guardian ad litem or next friend, including his compensation and that of his counsel, shall be determined by the court and paid as it may order, either out of the estate or by the plaintiff or petitioner. If such expenses are to be paid by the plaintiff or petitioner execution therefor may issue in the name of the guardian ad litem or next friend.’

See McIsaac v. McAdams, 190 Mass. 117, 119, 76 N. E. 654,112 Am. St. Rep. 321,5 Ann. Cas. 729. It will be seen that under the statute compensation is to be awarded, but whether payment shall be ordered from income or principal is left for the determination of the court. Bridge v. Bridge, 146...