(224 Mass. 145)

ENSIGN v. FAXON. (Supreme Judicial Court of Massachusetts.

Middlesex. May 19, 1916.)

1. INSANE PERSONS 42(1)-GUARDIANSHIP

-ALLOWANCE OF COSTS FROM ESTATE.

Where during a guardianship the ward personally retained an attorney who rendered services in connection with the guardianship by bringing a petition in the probate court, and subsequently an action at law to recover for his services in the proceedings, and the guardian incurred expenses in defending the ward's estate, the guardian's expenses so incurred are proper charges in his account.

[Ed. Note. For other cases, see Insane Persons, Cent. Dig. § 64; Dec. Dig. 42(1).] 2. INSANE PERSONS 42(1)—GUARDIANSHIP -ALLOWANCE OF ACCOUNTS-TIME FOR AL

LOWANCE.

Rev. Laws, c. 162, § 44, providing that in contested cases before a probate or supreme court of probate, costs and expenses in the discretion of the court may be awarded either party to be paid out of the estate which is the subject of a controversy, as justice and equity may require, has no effect upon the general proposition that the probate court may at any time examine and allow the accounts of its appointees; the statute being merely supplementary to the inherent power of such courts, so that all expenses may properly be allowed in the guardian's final account.

[Ed. Note. For other cases, see Insane Persons, Cent. Dig. § 64; Dec. Dig. 42 (1).] 3. INSANE PERSONS 42(4)-GUARDIANSHIP -ALLOWANCE OF EXPENSES.

Expenses of the guardian in opposing in the probate court the petition of the ward to be discharged from guardianship, when allowed by the probate court, must stand where no evidence is reported, since it could not be said as a matter of law that there could be no ground which would justify evidence on such issue. [Ed. Note. For other cases, see Insane Persons, Cent. Dig. § 67; Dec. Dig. 42(4).]

4. APPEAL AND ERROR 151(3) INSANE PERSONS 54-RIGHT TO APPEAL "PERSON AGGRIEVED.'

A guardian of an insane ward is not a person who is aggrieved by a decree discharging him from his trust as guardian on the ground that his ward is no longer insane, within the meaning of Rev. Laws, c. 162, § 9, as to appeals, and as he has no right to appeal from the decree the costs of his appeal are not properly al

lowable in his account.

[Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. 151(3); Insane P'ersons, Cent. Dig. $$ 76, 86; Dec. Dig. 54.

For other definitions, see Words and Phrases, First and Second Series, Aggrieved. ]

5. APPEAL AND ERROR S56(1)-REVIEWGROUNDS NOT CONSIDERED.

Grounds for appeal from the decree allowing expenses of the guardian that it was erroneous in law, and that the probate court had no jurisdiction to allow certain items, and that the items allowed were unwarrantable and not in the interests of the ward, sufficiently present the right of a guardian to appeal from an order discharging him on the ground that his ward is no longer insane, a proper adjudication on the right ground being permissible whether the ground was relied on below or not.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3406; Dec. Dig. 856 (1).]

A direct appeal by the ward, from decrees allowing in the guardian's account costs of an appeal taken by him from a decree discharging him, is not a collateral attack on the jurisdic tion of the court to entertain the guardian's appeal, so that the burden is on the guardian to show that items claimed were incurred lawfully in the administration of his trust.

[Ed. Note.-For other cases, see Insane Persons, Cent. Dig. § 67; Dec. Dig. 42(4).] 7. INSANE PERSONS 42(4)—GUARDIANSHIP -ALLOWANCE OF CLAIMS-ESTOPPEL.

Failure of the ward to raise the question whether the guardian was a person aggrieved, so as to permit him to appeal from a decree discharging him, does not estop her from relying upon that point on appeal from decrees allowing in his account costs incurred on the former appeal, since it was a jurisdictional matter, and jurisdiction cannot be founded on consent alone.

[Ed. Note. For other cases, see Insane Per sons, Cent. Dig. § 67; Dec. Dig. 42(4).] Appeal from Supreme Judicial Court. Proceedings in the matter of the guardianship of Josephine Faxon wherein Charles S. Ensign, Jr., guardian, filed accounts which were allowed by the probate court. From such decrees the ward appealed, and from the finding of the single Justice of the Supreme Judicial Court affirming such decrees, the ward appeals to the full bench. Affirmed in part, and modified in part.

Charles M. Bruce, of Boston, for appellant. George M. Poland and Loring P. Jordan, both of Boston, for appellee.

RUGG, C. J. This is an appeal by one who has been under guardianship as an insane person from a decree allowing the accounts of the one who has been her guardian. The items in the account which are in controversy fall into several groups and will be treated accordingly.

[1, 2] 1. During guardianship, the ward personally retained an attorney at law, who rendered services in connection with her guardianship. He brought first a petition in the probate court (see Willard v. Lavender, 147 Mass. 15, 16 N. E. 582; St. 1915, c. 151, § 6), and then an action at law for his services in this regard, both having now been disposed of finally. The guardian incurred expenses in the defense of his ward's estate against these proceedings. These are proper items for inclusion in the guardian's account. It has been found to have been his duty to protect his ward's estate by this defense. It is contended that at least so far as concerns proceedings in the probate court and an appeal in the supreme court of probate, the exclusive jurisdiction to allow costs and expenses is found in R. L. c. 162, § 44,1 and

1 Section 44. In cases which are contested before a bate, costs and expenses in the discretion of the probate court or before the supreme court of procourt may be awarded to either party, to be paid by the other party, or they may be awarded to eiwhich is the subject of the controversy, as Justice ther or both parties, to be paid out of the estate and equity may require.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

that since no motion for allowance of costs or expense was presented, and no allowance made, and the proceeding is ended, there are no means for reimbursing the guardian for his expenses. This contention proceeds upon a misconception of correct probate practice and the meaning of the statute. The proper place for the allowance of all expenses incurred and disbursements made in the proper execution of his trust by a guardian, executor, administrator, trustee, or other fiduciary appointee of a probate court is in the account of his administration in the probate court. Those are matters relating to the management and disposal of the corpus of a trust which is under the control of the probate court. They are probate affairs. They should be settled by the probate court in the exercise of its general power of supervisions over receipts and disbursements of the estates of its wards. The examination and allowance of the accounts of its appointees is the particular proceeding appropriate for their adjudication.

extended its authority into a new field. A further reason why the probate court is the appropriate place for settling such matters is that the beneficiaries of the estate are entitled in general to be heard as to the reasonableness and necessity of all expenses of administration. A hearing upon the account is the only convenient occasion for their appearance.

Nothing contrary to this view was decided or intimated in Lucas v. Morse, 139 Mass. 59, 29 N. E. 223. In that case there was a petition by cestuis que trustent for accounting by a trustee, and later for his removal. After those proceedings were ended by final decrees, the original petitioners sought to get their expenses incurred therein paid out of the estate. Of course the petition was dismissed. That decision affords no countenance to the proposition either that a fiduciary appointee of a probate court cannot charge all his expenses rightly incurred in the execution of his trust in the account to the court of his administration or that that court is deprived of jurisdiction to pass upon such items. See R. L. c. 150, § 14. These items were allowed rightly in view of the findings of the auditor.

[3] Another group of items challenged is for expenses and disbursements incurred by the guardian in opposing in the probate court the petition of the ward to be discharg ed from guardianship. These items were allowed by the probate court and by the single justice. The evidence is not reported. Although the auditor's report is printed in the record (see Davis v. Gay, 141 Mass. 531, 6 N. E. 549), it nowhere is stated that this was the only foundation for the decree entered by the single justice. The decree can be reversed on this point only if as matter of law these items could not have been allowed. It cannot be said as matter of law that under no conceivable circumstances could there be ground which would justify the guardian in presenting evidence on this issue to the court of first instance. There might be a special direction or request from the judge to develop the facts or other conditions which would make such course proper. Perhaps it would be his duty in any event to present the facts to that court. These items must stand.

R. L. c. 162, § 44, has no effect upon this general proposition. That statute simply gives power to the probate court or Supreme Court of probate in appropriate instances to tax costs and expenses to either party as against the other or out of the estate. It supplements the inherent power of those courts. In instances where costs and expenses are sought by a defeated party out of the estate, or by a victorious party against his opponent the statute offers the only channel by which an award relating thereto can be made. But that statute in no degree narrows or impairs the general powers of a court of probate. For example, one appointed executor of a will, who is obliged to confront a contest in which he finally prevails, necessarily incurs costs in securing the attendance of witnesses and expenses in retaining counsel. In the ordinary case these need not be determined as a part of the proceedings for the proof of the will. The more appropriate proceeding in which to settle such matters is in the petition for allowance of his account. These are expenses which he has incurred in administering the estate. He ought to pay them like any other similar debt and then present them for allowance in his account. That this must be so is apparent from a brief review of the statutes. Prior to the enactment of St. 1884, c. 131, the courts had no power to award counsel fees in contested probate matters to be paid out of the estate or charged against against the other party. Brown v. Corey, 134 Mass. 249. But those appointed executors who succeeded in getting the will allowed did not bear personally their expenses for counsel fees. These and other necessary A guardian of an insane ward has no right disbursements were paid out of the funds to appeal from a decree of the probate court of the estate and allowed upon a proper ac-discharging him from his trust as guardian counting. The enactment of the statute did on the ground that his ward is not longer not curtail the powers of the court in re- insane. The guardian is not "a person who spect of its former jurisdiction, but rather is aggrieved" by such a decree within the

[4] Other contested items relate to expenses and disbursements incurred by the guardian in contesting the same petition of the ward for discharge from guardianship in the Supreme Judicial Court, to which it was brought by the appeal of the guardian. The probate court entered "a decree discharging Mr. Ensign from his trust as guardian," because the ward was no longer insane.

meaning of those words in R. L. c. 162, § 9., this ground of objection to this group of It was said respecting this statute by Mr. Justice Colt in Lawless v. Reagan, 128 Mass, 592, 593:

"In order to give a right of appeal * it must appear that the party appealing has some pecuniary interest, or some personal right. which is immediately or remotely affected or concluded by the decree appealed from."

items. One reason alleged was that the decrees were erroneous in law, another that the probate court did not have jurisdiction to al*low these items, others that they were unwarrantable and not in the interests of the ward. While other causes for the disallowance of these items may have been in mind at that time, this does not prevent now an adjudication upon the right ground. A court should not be astute to construe narrowly the grounds for appeal when the general purpose is to protect the estate of an insane perunwarranted in law even though the guardson from an expense of litigation which is ian may have been actuated by correct motives and by genuine solicitude for the good

The guardian of an insane person fails in every respect of meeting this test as applied to a decree to the effect that his ward is sane. Manifestly he has no personal right. A quite different issue is presented when he is removed for misconduct, where his right to appeal has been recognized without question. Perkins v. Finnegan, 105 Mass. 501; Gray v. Parke, 155 Mass. 433, 29 N. E. 641. In such a case his reputation for discretion, capacity, [6] This is not a collateral attack upon the sound judgment, or even honesty, may be injurisdiction of the appellate court. The volved. But he has no pecuniary interest in question here presented is whether certain any right sense in being continued as guard- items of charge in a guardian's account ought ian, when the probate court has adjudged to be allowed. The burden is on him to show that his ward has become sane. He is sim-that the items were incurred lawfully in the ply a trustee and can have no interest in administration of his trust. this regard adverse to the recovery of sani

of his ward.

[7] The ward is not estopped from now re

ty by the ward. In this respect he is likelying upon the point. The appellate court an executor under a will, who may be a competent witness to its execution. Sears v. Dillingham, 12 Mass. 358; Wyman v. Symmes, 10 Allen, 153. No person holding a position of trust can be heard in court to assert that the emoluments which may come from his continuance in the execution of the trust constitute a personal interest against the interests of those otherwise concerned in the trust. To allow such appeals would have a tendency to foster useless litigation at the expense of the trust, and to dissipate funds which ought to be conserved for the benefit

of the ward.

had no jurisdiction to consider the case except upon an appeal taken by a person aggrieved by the decree of the probate court. Pattee v. Stetson, 170 Mass. 93, 48 N. E. 1022. It would have been proper for the ward to have raised the question whether the guardian was a person aggrieved within the meaning of R. L. c. 162, § 9. That was the wise course for her to have pursued. But her failure so to do did not confer jurisdiction upon the court. That could not be founded on consent alone. She did not invoke that jurisdiction. She simply chose at the hearing on the appeal to rely upon the merits of her contention, as she did in the probate court, and she prevailed upon that issue. While it is unfortunate in its practical results that the point was not raised there and thus a long and expensive unnecessary hearing avoided, the hearing on appeal was due to the legally unwarranted conduct of the guardian in attempting to appeal, and not to that of the ward. The doctrine of estoppel is hardly applicable to the ward under these circum

It is not perceived that harm can come from refusal to recognize a guardian as a person aggrieved by such a decree. The probate court may be presumed to be impartial, and no such decree would be entered without full investigation. It may be assumed that one fair hearing always will be had on the subject. Perhaps heirs presumptive of the insane person have a right of appeal. Robinson v. Dayton, 190 Mass. 459, 77 N. E. 503; Sullivan v. Lloyd, 221 Mass. 108, 108 N. E. 923. The statute as to appointment of guardians now affords such flexibility of procedure that a mistake in declaring a guardianship ended when it ought to be continued can be corrected readily by a new appointment with- LEAHY v. STANDARD OIL CO. OF NEW

out delay. St. 1909, c. 504, §§ 99, 100; St. 1911, c. 206. In respect of being a person aggrieved by such a decree, a guardian of an insane person stands on no better footing than an administrator in opposing the probate of a will of his decedent produced subsequent to his appointment. Edwards v. Ela, 5 Allen, 87.

[5] The reasons for appeal were sufficient in statement to permit the consideration of

stances.

Decree accordingly.

YORK.

(224 Mass. 352)

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Sullivan, the owner of the garage, testified that when he was told by Morton of the spilling of the gasoline in the addition then under construction, he went to it and found the doors nailed and locked and was told by [Ed. Note. For other cases, see Negligence, Dunn, the head plumber, that "he couldn't Cent. Dig. §§ 130, 131, 135-137; Dec. Dig. go down there." In addition he testified that 89(1).] "he did not then learn about any disposition 3. TRIAL 256(12)-INSTRUCTIONS-REQUEST of the gasoline." Sullivan further testified FOR AMPLIFICATION. A charge being correct so far as it went, any deficiency in not defining by illustration the circumstances under which an act of negligence is a cause of an accident should have been brought to the court's attention.

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N. E. 522, 523 (12 L. R. A. 249). But it was | Co., 177 Mass. 15, 58 N. E. 183; Murray v. pointed out in that opinion that there was no question of remoteness in that case.

The ruling complained of in the case at bar dealt with the rule of law governing this case if the jury found Sullivan's act was a negligent act.

|

Boston Ice Co., 180 Mass. 165, 61 N. E. 1001; Turner v. Page, 186 Mass. 600, 172 N. E. 329; Oulighan v. Butler, 189 Mass. 287, 75 N. E. 726; Flynn v. Butler, 189 Mass. 377, 75 N. E. 730; Butler v. New England Structural Co., 191 Mass. 397, 77 N. E. 764; Ladd v. N. Y.,

The rule acted upon in Burke v. Hodge is stated in these terms:

When this case was before us before N. H. & H. R. R., 193 Mass. 359, 79 N. E. (Leahy v. Standard Oil Co., 220 Mass. 90, 107 742, 9 L. R. A. (N. S.) 874, 9 Ann. Cas. 988; N. E. 458), it was decided that the rule acted Toohy v. McLean, 199 Mass. 466, 85 N. E. upon in Burke v. Hodge, 217 Mass. 182, 104 578; Mullen v. Zides, 216 Mass. 202, 103 N. N. E. 450, was the rule applicable here if E. 635; Sousa v. Irome, 219 Mass. 273, 106 Sullivan's act was a negligent one. The N. E. 998; Norton v. Chandler, 221 Mass. learned counsel for the defendant has con- 99, 108 N. E. 897. tended that the rule which governs this case in the event that Sullivan's act was a negligent one is that laid down in Lane v. Atlantic Works, 111 Mass. 136, and under that rule no case for the jury was made out here. The short answer to that contention is that the rule acted upon in Burke v. Hodge is quite different from that laid down in Lane v. Atlantic Works, and that it was decided when the case was here before that the rule of Burke v. Hodge was the rule governing this case.

In a case where there is an intervening negligent act of a third person we have a case where "there is more obscurity than there ought to be, perhaps, upon the limits of liability in general," as was said in Glynn v. Central R. R., 175 Mass. 510, 511, 56 N. E. 698, 78 Am. St. Rep. 507. We think it better to make a more full answer to the contention than the short one stated above.

"The instructions given to the jury required them, in order to answer the issue affirmatively, to find that this negligence of the defendants was the sole efficient cause of the accident. The judge said that the question was whether this was the real cause, the compelling cause, of the accident. He told the jury that the answer to the issue should be 'No,' if there was intervening negligence of McArthur Brothers without which the wall would not have fallen. And after his charge had been finished, when his attention was called to this matter, he further said to the jury: 'You must find that the wall fell because of the negligent mixing and (that) it would have fallen as and when it did if the braces, the forms, had not been removed.' This was too stringent a rule. It was enough for the plaintiffs to show that the falling of the wall was due to the combined effect of the negligence of the defendants in mixing the concrete and of that of McArthur Brothers in removing the forms. Feneff v. B. & M. R. R., 196 Mass. 575, 580, et seq. [S2 N. E. 705]; Bagley v. Wonderland Co.. 205 Mass. 238, 245, 246 [91 N. E. 317]; D'Almeida v. B. & M. R. R., 209 Mass. 81, 87 [95 N. E. 398, Ann. Cas. 1913C, 751]; Hunt v. N. Y., N. H. & II. R. R., 212 Mass. 102, 107, 108 [98 N. E. 787, 40 L. R. A. (N. S. 7781; Brown v. Thayer, 212 Mass. 392, 397 [99 N. E. 237]; Dickey v. Willis, 215 Mass. 292, 293 [102 N. E. 336]. The plaintiff was entitled to have the issue found in his favor and to hold the defendants, although the accident would not have happened without the negligence of McArthur Brothers, if it also appeared that it would not have happened but for the negligence of the defendants which has been stated and that each of these different acts of negligence was a proximate cause of the accident, in the sense that the accident was directly due The rule laid down in Lane v. Atlantic to the combined effect of these two causes and Works is stated in these terms:

Cases like Lane v. Atlantic Works, are to be distinguished from cases like Scott v. Sheperd, 2 W. Bl. 892, and Ogden v. Aspinwall, 220 Mass. 100, 107 N. E. 448, where the intervening act is an involuntary one. In cases like Lane v. Atlantic Works (where the occasion of the injury suffered by the plaintiff is an intervening wrongful act) the intervening act is an independent act of volition on the part of a third person. It is with an intervening act of that kind that we have to deal here.

not merely to the negligence of McArthur Brothers.'

"In actions of this description, the defendant is liable for the natural and probable consc- It must now be taken to be settled (at quences of his negligent act or omission. The least in this commonwealth) that the natural injury must be the direct result of the misconduct charged; but it will not be considered too and probable consequences of the defendant's remote if, according to the usual experience of act are to be looked to in determining its mankind, the result ought to have been appre- character. See Sponatski's Case, 220 Mass. hended. The act of a third person, intervening 526, pp. 530, 531, 108 N. E. 466, L. R. A. and contributing a condition necessary to the injurious effect of the original negligence, will 1916A, 333. But in cases of negligence for not excuse the first wrongdoer, if such act ought example that when the character of the deto have been foreseen. The original negligence fendant's act is determined, i. e. when it is still remains a culpable and direct cause of the injury. The test is to be found in the prob- determined that the defendant's act was able injurious consequences which were to be a negligent one, the question of causation, i. anticipated, not in the number of subsequent e. the question whether the injury suffered events and agencies which might arise."

by the plaintiff was in fact caused by the This rule has since been acted upon in defendant's negligent act, is one not affected numerous cases. In the following cases it by what the natural and probable consewas held that a case for the jury had been quences of that act were. What was said by made out under this rule. Elmer v. Locke, the present Chief Justice in Sponatski's Case, 135 Mass. 575; Koplan v. Boston Gaslight ubi supra, 220 Mass. pp. 530, 531, 108 N.