Thorndike v. Hinckley

Knowlton, J. The report presents all the material evidence introduced at the trial. It appeared that the defendant was administratrix of her former husband’s estate, and guardian of the plaintiffs, who are her children, and that from her husband’s death in 1874 until she was removed from her guardianship by the Probate Court, in 1885, she was in charge of their property. Her accounts as guardian have been filed in the Probate Court, but have never been acted upon, and still remain unsettled. The plaintiffs put in evidence the trust deed made by her for their benefit, bearing date June 19, 1878, which admitted an indebtedness to her children, and the new deed in confirmation of the first, bearing the same date, but subsequently made in conformity with a decree of the court. It appeared that money had been collected from time to time under these deeds, and the defendant contended that the indebtedness referred to in them had been fully paid. She also testified, and the judge found as a fact, that she owed the plaintiffs nothing unless there was something still due on account of their property in her possession as guardian which she had not paid over. It is established by the authorities, that, on such a liability, an action of indebitatus assumpsit cannot be maintained before the guardian’s accounts are settled in the Probate Court. It is important to the parties in such cases that all matters of account should first be considered and determined in the Probate Court, which is given jurisdiction for that purpose, and that neither of them should be liable to an action at common law while proceedings under the statute are open to the other. The defendant’s accounts had not been settled, and the plaintiffs’ remedy [266] for this kind of default should have been sought in another way. Brooks v. Brooks, 11 Cush. 18. Moore v. Hazelton, 9 Allen, 102. McLane v. Curran, 133 Mass. 531. Murray v. Wood, 144 Mass. 195. If there had been a settlement of the accounts, and a refusal to pay over the balance due, an action at common law might be maintained. Cobb v. Kempton, 154 Mass. 266. It was competent for the defendant to testify that the trust deeds referred to her indebtedness as guardian at the time the first deed was made. The plaintiffs introduced no evidence to show that the defendant owed them except the deeds, and these were relied on, not as contracts to be enforced, but merely as evidence of the existence of a debt. The liability as guardian was not one that can be enforced by an action of this kind, unless the deeds changed its character in that respect. But the deeds referred to the indebtedness merely as the inducement to the making of the contract then entered into. They created a new relation between the parties. The defendant became the grantor in a trust deed, and the maker of a promissory note to the trustee for the benefit of the plaintiffs. A new liability was thus created which the courts will enforce, but which the plaintiffs do not seek to have enforced in this suit. Except as the new contracts may be made available according to their terms, there was no change. The indebtedness, considered merely as indebtedness, apart from the contract, took on no new quality, and if it could not have been collected by an action for money had and received before the deed and the note were made, it could not afterwards. Moreover, the plaintiffs have ratified the action of their trustee, and have accepted the deeds and note by their guardian, and they were parties to the proceedings before the court which resulted in a new and reformed deed under which they have been receiving payments. Having accepted the contract made by the defendant, they must take it with its qualifications. By its terms a note is given, and collections are to be made from the property, to be applied on the note. When the note is payable does not appear, for it was not introduced in evidence. The acknowledgment of an indebtedness on which the defendant was not liable before, was coupled with a provision for the payment of it in a certain way, and not otherwise. A contract which [267] provided for a particular mode of payment of it, and for no other, cannot be held to have opened to the plaintiffs a new mode of collection different from that mentioned in the contract. The admission is no broader in legal effect than appears in the purpose for which it was made. The court rightly refused the ruling requested at the trial, and properly found for the defendant. Judgment for the defendant.