Probate Court of City of Providence v. Higgins

• Decision Date: 08 April 1937
• Docket Number: Nos. 7570, 7571.,s. 7570, 7571.
• Citation: Probate Court of City of Providence v. Higgins, 191 A. 260, 58 R.I. 58 (R.I. 1937)
• Parties: PROBATE COURT OF CITY OF PROVIDENCE v. HIGGINS et al. (two cases).
• Court: Rhode Island Supreme Court

191 A. 260

PROBATE COURT OF CITY OF PROVIDENCE

v. HIGGINS et al.(two cases).

Nos. 7570, 7571.

Supreme Court of Rhode Island.

April 8, 1937.

Exceptions from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Judge.

Two actions by the Probate Court of the City of Providence against Ellen A. Higgins, alias, and others, and Ellen Higgins, alias, and others.

Decisions for the defendants and the plaintiff brings exceptions by leave of court under Gen.Laws 1923, c. 347, § 3.Exceptions overruled and cases remitted for entry of judgment on the decisions.

Joseph H. Coen, of Providence, for plaintiff.Hoyt W. Lark and Hart, Gainer & Carr, all of Providence, for defendants.

BAKER, Justice.

These two actions of debt on bond, involving the same issues, were heard together by a justice of the superior court, sitting without the intervention of a jury.At the conclusion of all the evidence, he rendered a decision for the defendants in each case.Thereafter, the plaintiff obtained leave from this court, under the provisions of Gen.Laws 1923, c. 347, § 3, to prosecute bills of exceptions in both cases to this court, and such bills of exceptions were duly prosecuted and are now before us.They are similar, and contain exceptions to the admission by the trial justice of certain testimony introduced on behalf of the defendants, to his refusal to strike out certain like evidence after it had been admitted, and to his decisions.

The record shows that the bonds in question were given to the Probate Court(formerly the municipal court) of the City of Providence, for the benefit of one Catherine Higgins, at present Catherine Clifford, the plaintiff herein, then a minor, but now of full age, and of another who is not involved in these proceedings.In No. 7570, the action is brought on a bond in the penal sum of $900, dated November 29, 1918, given by the defendant, Mrs. Higgins, as principal, following her appointment and qualification as guardian of the persons and estates of minors under fourteen years of age, one of them the plaintiff.On this bond the defendantAnnie V. Madden is surety.

In No. 7571, the action is brought on two bonds.Both are executed by the defendantEllen Higgins as principal and as guardian of the persons and estates of said minors, one of whom was the plaintiff, and on both bonds the defendantsJames J. Madden and Annie V. Madden are sureties.The first of these last-mentioned bonds bears date of July 29, 1926, and is in the penal sum of $1,000 and was given when the defendant Mrs. Higgins was authorized by the Probate Court of the City of Providence to sell, as guardian of their estates, the interest of her wards in certain real estate situated in the city of Pawtucket.The second of such bonds is of a similar nature, but relates to the interest of the plaintiff in certain real estate located in the City of Providence, and is dated December 13, 1927, and is in the penal sum of $3,500.

From the evidence it appears that the defendant Mrs. Higgins was the second wife of one Richard Higgins, a florist in Providence, who died intestate August 15, 1918, leaving, in addition to Mrs. Higgins, three minor children by a former marriage.One of them is the present plaintiff, who at the time of her father's death was something over ten years of age.In November, 1918, Mrs. Higgins was appointed and qualified as guardian of the persons and estates of these minors.The plaintiff lived continuously with her stepmother for upwards of nine years, or until September, 1927, and thereafter on several other occasions prior to becoming of age February 22, 1929.During all this time the plaintiff was fed, clothed, educated, and otherwise supported and maintained by the defendant Mrs. Higgins in a proper manner considering her resources and station in life.As the plaintiff grew up, she assisted to some extent with the housework and to a less extent with the florist business, but prior to her majority was not otherwise employed, and turned over no money to her stepmother.

When Mr. Higgins died he left little personal property, a small amount of insurance and some real estate which was mortgaged.The florist business he had conducted and the greenhouses connected therewith were run down, and he owed a substantial sum of money at his death.Mrs. Higgins, the defendant, had some funds of her own which she used to repair the greenhouses and build up the business, which she then actively managed for some years, she herself working in the greenhouses.From this business the family was supported.

The plaintiff's net share in the amount received from the disposal of the Pawtucket real estate in 1926, under authority of the Probate Court, as hereinbefore referred to, was $335.Similarly, the net sum received from the sale of her interest in the real estate in Providence in 1927 was $1,853.46.In the instant casesthe plaintiff is claiming from the defendants, by reason of alleged breaches of the bonds sued on, the sum of $2,455.83, which is the total of the amounts above set out, with interest thereon.

The breach of the bonds chiefly relied on by the plaintiff is that the defendant Mrs. Higgins, as the guardian of the plaintiff's estate, failed to file a final account, although cited by the Probate Court of the City of Providence to render such account by April 9, 1929, and again by August 9, 1932.Mrs. Higgins admits that she has rendered no final account of the plaintiff's estate to the Probate Court, and that this condition of the bonds in question has been breached.She contends, however, that she is entitled to account with the plaintiff, her former ward, who is now of full age, that the present actions provide a vehicle for such accounting and that the trials in the superior court were held upon the chancerization of the bonds involved, as well as upon the question of whether any breach of the conditions of the bonds existed.It is clear from the record that the hearing in the superior court did proceed upon this theory.

The plaintiff's first contention is that the Probate Court has exclusive original jurisdiction of passing upon a guardian's account, and that the superior court had no jurisdiction to permit the defendant Mrs. Higgins, to make, in effect, an accounting in the present cases.The plaintiff's contention may be correct, in so far as it refers strictly to the account of a guardian with a probate court.As to such an account, the jurisdiction of the superior court is set out in Gen.Laws 1923, c. 323, § 10, which deals with the exercise of general probate jurisdiction by the superior court, and is as follows: "The superior court shall have jurisdiction of such appeals and statutory proceedings as may be provided by law, and may exercise general probate jurisdiction in all cases brought before it on appeal from probate courts or when such jurisdiction is properly involved in suits in equity."

Mrs. Higgins, as guardian, however, has rendered no account to the Probate Court, but in the instant cases has been sued originally in the superior court by her former ward in these actions of debt on bond for breaches of the bonds involved herein.Under these circumstancesthe superior court is not exercising any general probate jurisdiction, but the cases are actions at law of such a nature that by statutethey are to be decided by the application of equitable principles.Gen. Laws 1923, c. 344, § 4, in relation to the chancerization of bonds provides that: "The court shall award an execution in such case for so much of the penal sum as shall then be due and payable in equity and good conscience, for the breach of the condition, or other non-performance of the contract."

Gen.Laws 1923, c. 371, § 1, provides for the methods by which a guardian may settle his final account.The material portion of that section reads: "3.In the case of a guardian of an estate: * * * Fourth.At the expiration of his trust to settle his account in the probate court or with the ward or his legal representative, and to pay over and deliver all the property remaining in his hands or due from him on such settlement to the person entitled thereto."It appears, therefore, that where the ward has reached majority, as in the cases at bar, and the guardianship has terminated by operation of law, two distinct methods of accounting appear in the statute, namely, a settlement in the Probate Court or with the ward.Either suffices, and if the account is settled with the ward, who can act for herself, none need be filed in the Probate Court.No particular way of settling with the ward is specified or required by the statute.

As the questions involved herein relate to the final account of a guardian, in our judgment the section just referred to is controlling rather than Gen.Laws 1923, c. 372, § 25, cited by the plaintiff, which clearly by its terms deals only with annual accounts of a guardian, and the consequences which follow the failure of such guardian to file an annual account when cited by a probate court so to do.We do not consider that this section last mentioned is applicable to the facts disclosed in the present cases.We are of the opinion, therefore, that the defendant Mrs. Higgins, having been sued for the breach of the conditions of the bonds involved herein, may, in these present proceedings, settle her account as guardian with the plaintiff, her former ward, even though she has neglected to account with the Probate Court after being cited so to do, by having the bonds in question chancerized by the superior court in order to have determined what amount, if any, is due the plaintiff, and that the superior court has jurisdiction to pass upon this issue in the instant cases.

The plaintiff's suggestion that the defendant Mrs. Higgins is not entitled to charge the plaintiff's estate for her board, lodging, or clothing, and have such sums credited to Mrs. Higgins' account as guardian in the present actions in...