Forbes v. Allen

Rugg, C. J. This is an action upon a bond given by a guardian to the judge of probate. Judgment was entered for the plaintiff for the penal sum of the bond. The case was then referred to an assessor “to hear the parties and their evidence, assess the damages and report his findings.” Several questions of law are presented in the report. An assessor is not a species of auditor but a different kind of officer. Speirs v. Union Drop Forge Co. 180 Mass. 87, 89. Certain questions of law are stated in the report as having been raised before the assessor. Carew v. Stubbs, 161 Mass. 294, and cases there cited. McKim v. Titus, 182 Mass. 393. National Machine & Tool Co. v. Standard Shoe Machinery Co. 186 Mass. [366] 44. Hart v. Brierley, 192 Mass. 147, It is assumed in favor of the defendants, but without so deciding, that the questions of law which have been argued by them are properly presented.and the case is considered on its merits. The guardian for his ward had a note dated May 7, 1912, secured by mortgage, payable, $100 and interest every six months. All instalments and interest had been paid up to October 1, 1913, when the guardian accepted a proposition by the mortgagors to pay the note in full on discount of $200, receiving $1,415 instead of $1,615, the amount due on its face. When this offer was made, there were outstanding bills due from the ward, and money was needed also for other purposes. No approval of this settlement was obtained from the Probate Court. The record is bare of any facts which justified the guardian in not collecting the amount of the note and interest. There is nothing to indicate that the note was not worth its face in cash or that it could not have been collected in full. Therefore, the guardian could not rightly cause the estate of his ward the loss of the $200 made by way of discount. It was to that extent a maladministration of the estate, for which the guardian and the surety on his bond are liable personally on the bond. If the guardian compromised the note for less than its face without the authority of the Probate Court previously obtained, he took his chances of being able to satisfy the appropriate tribunal after-wards that he exercised sound judgment in so doing. Blake v. Ward, 137 Mass. 94. Thayer v. Kinsey, 162 Mass. 232. Gardiner v. Thorndike, 183 Mass. 81. The assessor has found against him and there is nothing to show that there was error in this conclusion, no evidence being reported. This point has been considered and decided as presented by the parties. However, the decree of the Probate Court in disallowing this discount in the final account of the guardian was conclusive upon the guardian and the sureties. The sureties are liable on the bond for any default of the guardian in settling “his account in the Probate Court” and in paying over to the person or persons lawfully entitled thereto all the property “due from him on such settlement,” that is to say, on the settlement of his account in the Probate Court. R. L. c. 149, § 1, 6, cl. 4. G. L. c. 205, § 1, f 6, cl. 4. The accounts of the guardian must [367] be settled finally in the Probate Court. McIntire v. Ensign, 232 Mass. 83, 85. The sureties upon the guardian’s bond cannot try over again an item there adjudicated but must accept it as the basis of their liability, although they may show reduction or extinguishment of that liability by transactions outside the scope of the accounting. Harmon v. Weston, 215 Mass. 242. See Fidelity & Casualty Co. v. Withington, 229 Mass. 537, and Withington v. Fidelity & Casualty Co. 237 Mass. 73. Evidence to the effect that counsel for the defendants took up the matter of discounting the note with one of the judges of probate, who said he saw no reason why the guardian could not make the discount, was excluded rightly. Taken at its face this was not an approval of the discount. But nothing short of a formal decree of the judge after notice to interested parties could have protected the guardian against attack upon his account disclosing the discount. R. L. c. 145, § 25. G. L. c. 201, § 37. R. L. c. 148, § 13. G. L. c. 204, § 13. The guardian was removed in January, 1917. There was a proffer to show that in the following December the surety offered to the former ward, who appears at that time not to have been under guardianship, $125 in full settlement of the surety’s liability on the bond, provided the ward would wait until after the holidays, and that this offer was accepted by the ward; that this sum later was offered by the surety and was refused by the ward. This evidence was excluded rightly. Manifestly it constituted no defence to an action on the bond. This was merely an executory agreement without consideration, not binding upon the ward, not enforceable against him nor susceptible of being set up in bar of an action on the bond. Clifton v. Litchfield, 106 Mass. 34,40. Herrmann v. Orcutt, 152 Mass. 405. At most it was an accord without satisfaction and hence no defence. White v. Beverley Building Association, 221 Mass. 15. Prest v. Cole, 183 Mass. 283. Moreover, it was not set up in the answer, which was only a general denial. It could not have been shown as a defence at the trial before the assessor. Mark v. Stuart-Howland Co. 226 Mass. 35, 42, and cases there collected. The motion to amend ithe answer after judgment was denied. Nearly two years after the entry of this action in court, after answer filed and reference to the assessor, the defendants filed [368] a motion to dismiss the action for want of an indorser for costs , as required by R. L. c. 149, § 26. Whatever rights the defendants may have had under that statute, if any, had been waived by failure seasonably to assert them. Keown v. Hughes, 233 Mass. 1, 4, and cases collected. Motion to dismiss denied. Exceptions overruled.