Murphy v. Duane

Braley, J. The plaintiff is the administrator with the will annexed of Thomas McDonough, who left no assets except real property which under a license from the Court of Probate was sold for $3,500. The administrator also received $23.40 “from an insurance policy” making the total amount $3,523.40 for which he was chargeable, and after deducting debts and expenses of administration there remained for distribution $3,143.64. By his will the testator after a legacy of “five dollars” to his daughtér Bessie Been, devised all his estate in equal shares to his daughter Mary E. McDonough, now by marriage Mary E.' Mangini, and his son Albert McDonough, a minor, subject however to the following condition: “ In the event of my said daughter Mary E. McDonough entering the married state it is my will and I hereby give bequeath and devise all my real estate to my said son Albert McDonough, said daughter Mary E. McDonough to receive in lieu of said real estate the sum of five hundred dollars.” The daughter having married after the death of her father, and the real property having been converted into money, Albert, if nothing further appeared, would be entitled to $3,143.46 less the legacies to Bessie and Mary. Thissell v. Schillinger, 186 Mass. 180. Renwick v. Macomber, 225 Mass. 380. Bartlett v. Moore, 233 Mass. 481. But the widow, who waived her rights under the will, having received as her distributive share $1,040.02 the balance coming to Albert would be $1,598.44. The plaintiff however having paid [486] to the assignee under Mary’s assignment $700, as stated in the record and shown by his final account which has been duly allowed, and to the defendant as guardian of Albert $1,400, sues to recover back $360 of this amount, upon the ground as he testified that the payment to the guardian was made by mistake. We find no explanation in the record why the payment to the assignee was in excess of the legacy, but whatever the circumstances may have been the defendant apparently does not question its validity; nor is it material. If allowed, the amount still due Albert would be $1,398.44. It appears that the defendant actually received for his ward $1,384.04, for he testified and the judge could find, that the difference of $15.96 was retained in payment of an account between himself and the plaintiff. The judge accordingly was warranted in finding on the plaintiff’s own showing, that there had been no overpayment to the guardian, and the fourth request was properly denied. The assignment given by Mary was rightly admitted. It was honored by the plaintiff and in the settlement of the estate she was entitled to her legacy, which proportionately diminished the amount coming to Albert, and the evidence, instead of being prejudicial, was for his benefit. The admission of the final account of the defendant as guardian, which had been allowed before the present action was brought, was not erroneous.* No contractual relations ever existed between the plaintiff and the defendant in his representative capacity. The ward had become of age, and the allowance of the account showed that the money received from the plaintiff had been duly paid over. It is settled that the ward during guardianship, and not the guardian, is the only party in all actions concerning his title or estate. Jennings v. Collins, 99 Mass. 29. Lombard v. Morse, 155 Mass. 136, 137, 138. Mee v. Fay, 190 Mass. 40. And when minority terminates and he comes into possession of personal property formerly in control of the guardian as in the case at bar, those who claim title thereto in whole or in part must sue him and not his former guardian. Rollins v. Marsh, 128 Mass. 116, 118. Lanman v. Lanman, 206 Mass. 488, 491. [487] The fifth and sixth requests that as matter of law the plaintiff was entitled to recover could not have been given. The third request is disposed of by the judge’s finding. The ruling under the second request, that, while the filing and allowance of the guardian’s first and final account is no defence, yet the court declines to order a verdict for the plaintiff, was sufficiently favorable. See Merchants’ Ins. Co. v. Abbott, 131 Mass. 397, 401-404; Moors v. Bird, 190 Mass. 400. We perceive no reversible error of law at the trial, and the exceptions should be overruled. So ordered. Footnotes [*] The bill of exceptions stated: “Albert McDonough became' twenty-one years of age before the bringing of this action.”