Wiley v. Fuller

• Decision Date: 26 January 1942
• Parties: RAY M. WILEY, guardian, v. GEORGE HAROLD FULLER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

310 Mass. 597

39 N.E.2d 418

RAY M. WILEY, guardian, v. GEORGE HAROLD FULLER.

Supreme Judicial Court of Massachusetts, Hampden.

January 26, 1942

September 18, 1941.

Present: FIELD, C.

J., QUA, DOLAN COX, & RONAN, JJ.

Guardian, Of minor Compensation. Probate Court, Report of material facts Appeal, Accounts, Costs, Decree. Evidence, Presumptions and burden of proof. Bias. Judge. On an appeal with a report of material facts by a judge of probate under G.

L. (Ter. Ed.) c 215, Section 11, and no report of the evidence, the facts stated must be taken as true if not mutually inconsistent nor plainly wrong on the face of the report; and the question before this court is whether the decree was proper on the pleadings and such facts only, without the implication of further findings from the entry of the decree.

On a contest of his account, a guardian has the burden of proving that payments from the ward's funds in his hands were proper.

On facts found by a judge of probate, a guardian of a minor had not sustained the burden of showing that a payment for an overcoat for his ward was proper as being for his "comfortable and suitable maintenance and support," or that payments for medical services rendered the ward before the guardianship began were proper as in satisfaction of a just debt due from the ward; and there was no error in disallowing such payments.

A determination by a judge of probate of what is just and reasonable compensation for a fiduciary's services is open to review by this court.

No error appeared in a disallowance by a judge of probate of all compensation for services of a guardian of a minor without custody where the estate was small, a substantial portion of the guardian's expenditures from the estate was disallowed, and he performed little, if any, valuable service and caused the ward difficulty and expense in the settlement of his account.

An award of "damages" to a ward against his guardian in a decree entered after a contest of the guardian's account on facts found was justifiable as an award of costs and expenses under G. L. (Ter. Ed.) c. 215, Section

45; and the amount thereof, though seemingly large in view of the small size of the estate and other circumstances, could not be said to have shown an improper exercise of the discretion of the judge of probate.

Questions as to the admissibility of evidence are not open on appeal from a decree of a judge of probate with a report of material facts but no report of evidence.

Bias or prejudice of a judge of probate toward a guardian in a hearing on his accounts was not shown by his including, in a report of material facts on appeal from a decree on the account, findings as to certain conduct on the guardian's part toward his ward which the guardian contended was immaterial to the case.

PETITION for the allowance of an account, filed in the Probate Court for the county of Hampden on July 15, 1940.

The case was heard by Denison, J. M. L. Davis, for the petitioner, submitted a brief.

No argument nor brief for the respondent.

FIELD, C.J. The guardian (without custody) of George Harold Fuller, a minor who has now become of age, presented to the Probate Court a first and final account for the period beginning July 15, 1938, and ending July 10, 1940, in which he charged himself with $213.13 and asked to be allowed for ten items of payments and charges aggregating $213.13, leaving no balance on hand. A decree was entered disallowing six of the items of payments and charges and $10 included in another item, amounting in the aggregate to $155, and leaving a balance on hand of $155, amending the account accordingly, and allowing it as a first account. The decree also provided that "it further appearing that the former ward has necessarily expended certain sums in connection with this accounting and owes his attorney for services; it is further decreed that the accountant pay to said distributee the sum of $134.10, as damages." From this decree the accountant appealed. No evidence is reported. At the request of the accountant, however, the judge made a report of the material facts found by him.

See G. L. (Ter. Ed.) c. 215, Section 11. It does not appear that any attempt was made to secure any change in these findings of fact or any further findings of fact. See Plumer v. Houghton & Dutton Co. 277 Mass. 209 , 214-215; Merrill v. Everett, 293 Mass. 327 , 328; Tracy v. Bishop, 298 Mass. 182 , 185.

Procedure on this appeal in a probate proceeding follows that in equity so far as applicable and practicable. G. L. (Ter. Ed.) c. 215, Section 9. Ensign v. Faxon, 229 Mass. 231 . Gallagher v. Phinney, 284 Mass. 255 , 257. The material facts found by the judge must be deemed to be all the facts upon which he acted in entering the decree and leave no room for further findings to be implied from the decree. Sullivan v. Quinlivan, 308 Mass. 339, 341, and cases cited. Sidlow v. Gosselin, ante, 395, 397. In the absence, as here, of any report of the evidence, the material facts reported must be taken as true unless "they appear on the face of the report to be mutually inconsistent or plainly wrong or incompatible with the pleadings or other documents set forth in the record.

" Plumer v. Houghton & Dutton Co. 277 Mass. 209 , 215. Macomber v. King, 288 Mass. 381 , 383. Atwood v. Atwood, 297 Mass. 229 , 231-232. The "findings of fact thus made are in the nature of documents to be interpreted." Jones v. Clark, 272 Mass. 146, 149. The question for decision is whether, solely on the findings reported by the judge, considered as above stated, the decree was rightly entered. Nelson v. Wentworth, 243 Mass. 377 , 378. Melville Shoe Corp. v. Kozminsky, 268 Mass. 172 , 174. Sullivan v. Quinlivan, 308 Mass. 339, 341.

1. Disallowance of items of payments and charges other than compensation for services. -- The burden of establishing the correctness of the account in respect to these items by affirmative evidence rested on the accountant. Wood v. Farwell, 195 Mass. 559 , 560. Gallagher v. Phinney, 284 Mass. 255 , 258. Merrill v. Everett, 293 Mass. 327 , 329.

On the facts stated in the report this burden was not sustained as to any of these items -- aggregating $145 in amount. This is clearly true of the items disallowed aggregating $5 in amount, with respect to which it was found only that these items "were insufficiently supported.

" Another item disallowed was "Wearing apparel -- W. E. Atkinson 25.00." The findings with respect to this item are these: "Wiley had a second-hand overcoat in his office of uncertain ownership. At the time in question the ward had three overcoats. Wiley forced the office overcoat upon the ward and charged him twenty-five dollars for it." An inference cannot rightly be drawn from these findings alone that the amount charged for the overcoat was a proper charge against the estate of the ward for his "comfortable and suitable maintenance and support" as being for his benefit or advantage. G. L. (Ter. Ed.) c. 201, Section 38; c. 205, Section 1 (6) Second. Dolbeare v. Bowser, 254 Mass. 57 , 61.

Two items disallowed were cash for "Medical Services rendered by Dr. James J. Grace," one for $75 and one for $40. The specific findings as to these items are: "Fuller had visited one Dr. Grace and had been under treatment by the physician for several months before Wiley became guardian of the estate. Dr. Grace never asked for payment from Wiley, nor sent him a bill, but Wiley without investigation of treatments and with no particulars, sent Dr. Grace cash by messenger on one occasion and called the doctor to Wiley's office and gave him cash on the other. . . . Wiley instructed Dr. Grace to make his bill larger." A guardian is required to "pay all just debts which are due from his ward out of the personal property, if sufficient, and, if not, out of the real property, upon obtaining a license for the sale thereof." G. L. (Ter. Ed.) c. 201, Section 37. See, as to a creditor recovering on the bond of a guardian for failure to pay such a debt, Long v. Copeland, 182 Mass. 332 , and cases cited. It is apparent from the record that the personal property of the ward in the hands of the guardian was sufficient for the payment of the amounts paid. The facts found, however, fall short of showing that there was a just debt of the ward to the physician. The facts found show merely that the ward, before the accountant became guardian, "had visited" the physician and "had been under treatment" by him "for several months." Doubtless in some circumstances medical services furnished to a minor upon his own credit may be a necessary, the furnishing of which to him implies an obligation on his part to pay therefor what such services are reasonably worth -- that is a just debt of the minor. Hoyt v. Casey, 114 Mass. 397 . Trainer v. Trumbull, 141 Mass. 527 . L. P. Hollander Co. v. Porter, 267 Mass. 378 . Luster v. Luster, 299 Mass. 480 , 484. Compare G. L. (Ter. Ed.) c. 106, Section 4. No such circumstances appear. The facts reported do not show that the medical services were actually required by the minor or that they were furnished upon his credit. Nor do the facts show what, if anything, these services were reasonably worth.

2. Disallowance of compensation for services of the guardian. -- With respect to an item in the account of $13.13 for "Guardian's fee and disbursements," allowed in the sum of $3.13, the report of material facts states that this item "included actual disbursements of three dollars and thirteen cents and ten dollars for services." The guardian was entitled to "such compensation for services as the court may allow." G. L. (Ter. Ed.) c. 206, Section 16. But the court in making such an allowance can allow properly only such compensation as is "just...