Whitmarsh v. McGair

• Decision Date: 04 December 1959
• Docket Number: No. 10004,10004
• Parties: Mabel L. WHITMARSH v. William J. McGAIR. Ex.
• Court: Rhode Island Supreme Court

Page 83

156 A.2d 83

90 R.I. 154

Mabel L. WHITMARSH v. William J. McGAIR.

Ex. No. 10004.

Supreme Court of Rhode Island.

Dec. 4, 1959.

Pontarelli & Berberian, Aram K. Berberian, Providence, for appellants.

Frank G. Shea, Providence, for appellee.

FROST, Justice.

This is an appeal to the superior court from a decree of the probate court of the city of Cranston allowing on March 4, 1955 the first account of William J. McGair as guardian of Mabel L. Whitmarsh, the original appellant herein. She died on June 23, 1955. Thereafter Carol Ann Whitmarsh and Lucy Mae Stubbs, her sole heirs, and J. Clifden O'Reilly as administrator of her estate were allowed to intervene. They were the appellants in the superior court following the death fo Mrs. Whitmarsh.

Prior to the trial of the appeal before a justice of that court sitting with a jury an amended pre-trial order was entered which contained the following issues: '(2) Should Schedule A of the Guardian's Account be allowed as filed? (3) If the answer to issue Number 2 is no, with what amount, if any, should the guardian be surcharged up to the amount of $7163.86 plus interest claimed?' The verdict of the jury was that schedule A should be allowed as filed and that the guardian should not be surcharged in any amount. Thereafter a decree was entered denying and dismissing the appeal and affirming the decree of the probate court entered on March 4, 1955. The case is before us on the appellants' bill of exceptions.

A brief statement of the background of this case is essential to its understanding. In 1930 Mrs. Lucy M. Bishop and Mrs. Mabel L. Whitmarsh, sisters, both elderly women, were living together on Park avenue in the city of Cranston. Doctor Charles L. Southey, their family physician, lived across the street. In 1940 the sisters were in difficult circumstances. Real estate taxes and mortgage payments were in arrears. Mrs. Bishop was the owner of the property in Cranston where she and Mrs. Whitmarsh were living and she was also a cotenant with her sister in property located in the city of Warwick. At this time, that is in 1940, Dr. Southey was appointed conservator of Mrs. Bishop's estate. Afterward Mrs. Whitmarsh conveyed her interest in the Warwick property to Mrs. Bishop, and as conservator of Mrs. Bishop's estate Dr. Southey sold the property in Cranston and somewhat later the property in Warwick.

After the death of Mrs. Bishop Dr. Southey filed his first and final account for the period from November 8, 1940 to April 30, 1951. Subsequently he filed an amended first and final account for the period from November 8, 1940 to April 18, 1952.

It appears that on June 29, 1951 Mr. McGair was appointed administrator of the estate of Lucy M. Bishop and also guardian of the person and estate of Mabel L. Whitmarsh. As such guardian he filed his first account for the period from December 21, 1951 to January 3, 1955. The account was allowed in the probate court on March 4, 1955. An appeal from the decree allowing such account was taken to the superior court and as previously stated the case is here on the appellants' exceptions taken during the trial and to the decree entered thereafter.

Speaking generally, appellants complain of a lack of diligence on the part of Mr. McGair as administrator in failing to protect the estate of Mrs. Whitmarsh by taking an appeal from the allowance of Dr. Southey's account, since any surplus in that account would be paid to the administrator of Mrs. Bishop's estate and any surplus in the latter's estate would be paid to the administrator of Mrs. Whitmarsh's estate. The real objection on the part of the appellants to Mr. McGair's account is not what it contains but rather what it does not contain, since the appellants contend that many of the items in Dr. Southey's amended account should not have been allowed, with the result that the receipts in Mr. McGair's account would have been larger.

Specifically the appellants have twenty-two exceptions which we will now consider.

The first exception is to the refusal of the trial justice to allow counsel to require witness McGair to read a paragraph from a prayer contained in another case in the superior court, William J. McGair v. Aram K. Berberian, Equity No. 26637, and to the trial justice's refusal to allow an offer of proof. There is no merit in this exception and it is overruled.

Doctor Southey's amended account as conservator shows $18,001.68 received and the same amount disbursed, out of which $1,413.18 was paid to Mr. McGair as administrator of the estate of Mrs. Bishop. Among the payments are those for telephone, gas and electric service, ice, milk, groceries and coal. Other payments were made to department stores, to the District Nursing Association for the care of Mrs. Bishop, for medical services to her and for cash advanced. Schedule B also shows payments to an undertaker and for lettering of a gravestone, both in advance of death.

Exceptions numbered 3 and 4 were taken to the refusal to charge as requested, and exceptions 19 and 20 were to portions of the charge as given. The appellants requested the trial justice to charge that the conservator could not properly pay bills relating to the care, health, comfort or well-being of Mrs. Bishop as distinguished from expenditures necessary to conserve and manage her real estate and personal property; and further that a conservator only takes care of the property and should not pay out anything but the income therefrom without first getting permission from the probate court. The trial justice charged in substance 'that a conservator has the right to take care of all the property of his ward and pay out money for the proper support and care and maintenance of that ward, always at the risk that when he has done so he will later come into the Probate Court and get it confirmed'; and that it is not necessary to go to that court in advance for permission to pay a given bill, but may pay it if it is proper and later seek allowance for such payment in his account.

Bouvier's Law Dictionary, Rawle's Third Revision, defines conservator as a guardian; Ballentine's Law Dictionary (1930) defines conservator as a person appointed by a competent court to take care of and oversee the person and estate of an idiot or other incompetent person; and Black's Law Dictionary (4th ed.) defines conservator as a guardian, protector, preserver. In 25 Am.Jur., Guardian and Ward, § 21, p. 20, it is stated: 'In several states statutes authorize a person who, although of sound mind, believes he is incapable of managing his own estate or of caring for his own property to apply for, request, or consent to the appointment of a conservator of his estate, who, when appointed, possesses over the estate substantially the same powers and is subject in regard thereto to substantially the same duties as a guardian of an incompetent.' See also 15 C.J.S. Conservator p. 984. Belluci v. Foss, 244 Mass. 401, 402, 138 N.E. 551.

General Laws 1956, § 33-15-44, provides: 'If a person, by reason of advanced age or mental weakness, is unable to properly care for his property, the probate court of the town in which he resides, upon his petition or the petition of one or more of his relatives or friends, may appoint a conservator of his property. * * * If, at the hearing, it appears that such person is incapable of properly caring for his property, a conservator shall be appointed, who shall have the charge and management of the property of such person subject to the direction of the court. * * * After the filing of such petition such person shall be under the same disability to contract, as a person, for whom an application for guardianship has been made, is under, by virtue of the provisions of § 33-15-13.'

Section 33-15-45 provides: 'Such conservator shall give bond and file inventory as is required of guardians of estates. All provisions of law relative to accounting and to the management, investment, sale, lease, or mortgage by guardians of estates shall apply to the accounting and to the management, investment, sale, lease, or mortgage of estates by conservators.' Section 33-15-29 provides that every guardian shall apply so much as may be necessary of the ward's estate to the maintenance of the ward and his household or family.

It is apparent from our statutes and the definition of the word 'conservator' that the terms 'conservator' and 'guardian of the estate' of a person are essentially synonymous. A person may himself petition for the appointment of a conservator of his estate. To elderly persons needing help in the care of their property the word conservator appears to be less offensive and less suggestive of a loss of mentality than the word guardian, but the duties and responsibilities of a conservator appear not to differ materially from those of a guardian of the estate.

In the case of East Greenwich Institution for Savings v. Shippee, 20 R.I. 650, 40 A. 872, which was a bill of interpleader to determine the title to a fund remaining in the hands of a mortgagee, the fund being claimed by the guardian and also by the ward who had become of age, the former ward contended that there was no proof of indebtedness from her to the guardian. In the course of the opinion, on the question of limiting a guardian to the use of a ward's income for education and support without first obtaining the court's approval, the court stated at page 657 of 20 R.I., at page 874 of 40A.: 'In most of the United States, however, the guardian may leave his conduct to the subsequent approval of the court when he presents his account, assuming the risk, of course, of obtaining such approval.'

In Probate Court of City of Providence v. Higgins, 58 R.I. 58, 191 A. 260, the same question arose as here that a conservator should not be allowed to receive credit for expenditures of any part of the principal of his ward's estate without prior approval of the probate court. Apparently the...