Murray v. Wood

• Decision Date: 23 March 1887
• Citation: 144 Mass. 195,10 N.E. 822
• Parties: MURRAY v. WOOD, Assignee, etc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

144 Mass. 195

10 N.E. 822

MURRAY v. WOOD, Assignee, etc.

Supreme Judicial Court of Massachusetts, Berkshire.

March 23, 1887

COUNSEL

A.J. Waterman, for claimant.

This claim was presented and proved to the court of insolvency in the only way prescribed by law. Pub.St.Mass. c. 157, § 29 Pub.St.Mass. c. 143, § 18, providing for actions upon guardian's bonds, is not an exclusive remedy. Hicks v. Chapman, 10 Allen, 463; Simmons v. Almy, 100 Mass. 239; Spring v. Woodworth, 4 Allen, 326. In this case it would necessitate a stay of the insolvency proceedings until judgment could be obtained in the supreme judicial court in this county. Pub.St.Mass. c. 143, § 19. It has been held that an infant ward, during guardianship, may sue his guardian in equity. 1 Co.Lit. § 123, lib. 2, 89a, (2) note 72; Pickering v. De Rochemont, 45 N.H. 79; 3 Bac.Abr. 617, "Infancy and Age;" Mason v. Mason, 19 Pick. 510, 1 Amer.Dec. 26; Apthorp v. Backus, Kirby, 407; 4 Ham.Ch.Dig. "Infant," 321; Reeves, Dom.Rel. 322; 1 Rev. Swift, Dig. 592, 593, (580); 2 Kent, Comm. 229. The court of insolvency has jurisdiction in equity. Pub.St.Mass c. 157, § 15; St.1884, c. 293. After becoming of age, the ward may sue the guardian at law, and in some cases while an infant. Reeves, Dom.Rel. 322; Field v. Torrey, 7 Vt 372; 2 Kent, Comm. 229; Hutchcraft v. Shrout's Heirs, 1 B.Mon. 206, 15 Amer.Dec. 100; Stannard v. Whittesey, 9 Conn. 556; 1 Rev. Swift, Dig. 593, (580); Pickering v. De Rochemont, 45 N.H. 79. See Conant v. Kendall, 21 Pick. 36; Grout v. Harrington, 19 Pick. 403; Hapgood v. Wesson, 7 Pick. 47; McLane v. Curran, 133 Mass. 531; Brooks v. Brooks, 11 Cush. 18. There is no case to be found like the one at bar.

M. Wilcox and J. Dewey, for defendant.

The right of the ward was to an account in the probate court for her estate in the hands of William H. Murray, as guardian. His mere right was not a debt provable against the insolvent, within the meaning of Pub.St.Mass. c. 157, § 26, or of St.1884, c. 293. The relation of guardian and ward does not create the additional relation of debtor and creditor for the estate in the hands of the guardian. Consequently, at the time of the first publication of notice of issuing the warrant in insolvency, the ward had no such claim or debt as would have sustained a suit in law or equity to recover the money the guardian had received. Her remedy was through the probate court and the guardian's bond. Brooks v. Brooks, 11 Cush. 18; McLane v. Curran, 133 Mass. 531; Bush v. Moore, Id. 198. And, until a judgment of forfeiture upon the bond, there would be nothing in the nature of a debt that could be proved against the guardian or his sureties in insolvency, and then only in insolvency proceedings subsequent to such judgment of forfeiture. Loring v. Kendall, 1 Gray, 305, 306; French v. Morse, 2 Gray, 111-114; Bennett v. Bartlett, 6 Cush. 225; Sampson v. Clark, 2 Cush. 173; Ellis v. Ham, 28 Me. 385.

OPINION

FIELD J.

Although Murray ceased to be guardian when his ward reached the age of 21 years, his liability on account of property which came into his possession as guardian cannot be determined by a court of insolvency. His accounts are to be settled in the probate court. If he refuses to settle his accounts, or to pay over to the ward, the amount found due on such settlement, the remedy is by an action at law upon his bond which must be brought in the supreme judicial court in the name of the judge of probate. Pub.St. c. 139, § 22; Id. c. 143,§§ 18, 19. It is probably true that if he neglects or refuses to render any account, the probate court could still proceed to take an account, and determine how much is due from him, even if he was beyond the reach of process. Such a proceeding might be necessary when the bond for any reason was invalid, or the penalty was insufficient; but, until the amount has been determined in the probate court, an action cannot be maintained, either at law or in equity, in the name of the ward against a former guardian, to recover what is due on a settlement. As this amount had not been determined in the probate court, and as no suit had been brought and no judgment obtained upon the bond, the claimant had, when she presented her claim, no provable debt against the estate in...