McLane v. Curran

• Decision Date: 29 November 1882
• Citation: 133 Mass. 531
• Parties: Catherine McLane v. Mary Curran
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

133 Mass. 531

Catherine McLane v. Mary Curran

Supreme Court of Massachusetts

November 29, 1882

Plymouth. Contract, upon an account annexed, for necessaries furnished by the plaintiff to the defendant. Writ dated April 29, 1880.

The case was referred to an auditor, who reported that the plaintiff was the mother of the defendant, who was a minor and of whom the plaintiff was appointed guardian in March 1875, the defendant being then eleven years old; that the defendant's father died intestate on January 14, 1875 seised and possessed of both real and personal property, and the plaintiff was appointed administratrix of his estate that no inventory was filed by the plaintiff, either as administratrix or as guardian; that, in May 1880, the plaintiff filed an account as guardian of the defendant in the Probate Court, charging the defendant with precisely the same items and the same prices as were charged by the plaintiff in her account annexed to the writ in this action; and that such account was disallowed by the Probate Court. The auditor found that a certain sum was due from the defendant to the plaintiff, with interest from the date of the writ, if, as matter of law, the plaintiff was entitled to maintain her action, which question was reserved for the opinion of the court.

At the trial in the Superior Court, without a jury, Brigham, C. J., ruled that, upon the facts stated in the auditor's report, which was the only evidence offered, the action could not be maintained; and ordered judgment for the defendant. The plaintiff alleged exceptions.

Judgment affirmed.

H. Kingman, for the plaintiff.

C. G. Davis & W. H. Osborne, for the defendant.

Devens, J. Lord, C. Allen & Colburn, JJ., absent.

OPINION

Devens, J.

The plaintiff was appointed the guardian of the defendant, and, so far as appears by the report of the auditor upon which the ruling of the Superior Court was based, was so at the commencement of the action, and still is such guardian. The action is upon an alleged contract for necessaries. That an action at common law cannot be maintained between a guardian and a ward while that relation exists, is clear. The character of that relation, the capacity in which the guardian acts, the duty to the ward's property, (even if a guardian ad litem may be appointed where he is interested,) forbid that they should occupy the distinctly adverse position of suitors at common law, especially as to transactions occurring since the guardianship commenced. Brown v. Howe, 9 Gray 84. Mason v. Mason, 19 Pick. 506.

But even if the guardianship has come to an end, until at least an account has been settled in the Probate Court, and it has there been found that something is due from the ward, no such action can be maintained. The accounts between them are to be adjusted with all the facilities there offered for convenient settlement, and they are...