McIntire v. Ensign

Braley, J. The bond declared on was given under R. L. c. 149, § 1, cl. 6, and by the fourth condition the principal as the probate .guardian of his ward, who in the case at bar was an insane person, is required "At the expiration of his trust to settle his account in the Probate Court or with the ward or his legal representatives, and to pay over and deliver all the property remaining in his hands ■or due from him on such settlement, to the person or persons lawfully entitled thereto.” A guardian, if living, is not discharged unless payment has been made or the property delivered either to the ward or his legal representatives, or to his successor in office if a successor is ap [85] pointed. Loring v. Alline, 9 Cush. 68. Harding v. Weld, 128 Mass. 587, 591. McKim v. Mann, 141 Mass. 507. Hill v. Arnold, 199 Mass. 109. The question when the limitation in favor of the sureties as provided in R. L. c. 149, § 5, begins to run is not before us. See in this connection the cases just cited. The guardian, presumably on the ground that his ward had become sane, having been discharged by a decree of the cotut of probate entered April 15, 1914, and affirmed on appeal by this court August 18, 1914, filed and presented for allowance what purported on its face to be the eighth and final account covering a period ending August 5, 1914, on which a decree was entered charging the accountant with a balance of $10,235.82. The statement of agreed facts shows that immediately upon the entry of this decree the guardian filed a ninth account covering a period from August 5, 1914, to March 20, 1917, in which the disbursements exactly equalled the balance with which he had been charged in the eighth account. The ninth account on motion of the former ward was dismissed. But, on appeal, this court in Ensign v. Faxon, 229 Mass. 231, reversed the decree and ordered that the ninth account should stand for hearing in the court of probate where it was pending for allowance when the present action was brought against the principal and sureties for breach of the bond. The guardian had the right under Ensign v. Faxon, 229 Mass. 231, to have the ninth account adjusted and settled before, on the present record, an action for breach of the bond could be maintained. Rhines v. Wentworth, 209 Mass. 585. Green v. Gaskill, 175 Mass. 265. R. L. c. 150, § 20. It was suggested in argument by the plaintiff’s counsel that because of unreasonable delays the estate is being kept open to the great detriment of the former ward. While it is his duty to have the account passed upon, yet, if he remains inactive, his former ward can ask for a .hearing and the court of probate, treating the eighth account as interlocutory, can, if he neglects to appear or fails properly to account for the balance, proceed to a decree charging him with such an amount as is found to be justly due and which he should pay over in the discharge of his trust. Bennett v. Pierce, 188 Mass. 186. The action having been prematurely brought, the exceptions •must be sustained and judgment entered for the defendants. So ordered.