Wells, J.
By the decree, following the decision in 101 Mass. 592, this case was recommitted to the master with authority, among other-things, to report “ any facts, not stated in his former report, bearing upon the question whether the charge for commissions on income in the first account as guardian, and the charges relating to the exchange of real estate in the trustees’ account, were in fact heard and determined by the probate court as matters in dispute between the parties to these proceedings.” It was also ordered that this inquiry should not prevent the master from hearing the parties upon the several matters in controversy, and referred to him, “ as if the same were open for such hearing by leave of the court.”
The purpose and effect of these orders was to enable the appellees to present at this hearing both the question whdther the former accounts were open as a matter of right, and that of the propriety of their being opened by leave of the court, thus given. Subject to this revision, the former accounts were allowed to be opened in respect of the matters designated by the decree.
It is not necessary to consider minutely the effect of the additional facts reported and relied on to show that these matters were heard and determined by the probate court at the time the former accounts were allowed; because we are all satisfied that, if they could not be brought in question without leave of the court, that leave ought to be given, and was properly given. There was in reality no controversy or discussion in the probate court upon these objectionable charges; and whatever assent the guardian ad litem gave to the accounts was given without any communication with the ward, and was a mere formality.
It is contended that, under this provision of law, (Gen. Sts. o. 98, § 12,
It is further contended that the right and power thus to open former accounts is limited to cases where the same persons continue to represent the trust. Such is not the purport of the decision relied on for this position. Granger v. Bassett, 98 Mass. 462. The right depends upon identity of the estate or trust, and not of the accountants.
The consequences of a correction, when made, will depend of course upon the question whether the persons then representing the estate or trust are legally responsible for the previous maladministration or wrong disposition of the fund. In this case, the accountant Blake was and is responsible for the property which came into his hands from the time of the original appointment. Ames v. Armstrong, 106 Mass. 15. We find nothing in the facts reported, which would exempt him from liability for any improper disposition of any part of the estate or its income, although that disposition consisted in an excessive appropriation for payment of the charges of the trustees, in which his deceased co-trustee shared. The remedy of the cestui que trust may be had by, a correction of the account, leaving the surviving trustee to his claim over against the estate of his deceased associate. The new trustee will not, of course, be held responsible for funds which have never come to his hands or within his control, unless he neglects to take proper measures to secure the rights of his cestui que trust. Upon the correction of the account, the entries will .show the nature of the credit, so that the extent of the responsibility of the respective trustees will be made readily to appear.
Another objection urged by the appellees is, that the accounts can be opened only by proceedings to set aside the decree allowing the same, upon an application to be first made in the probate court, This position is coupled with another, that the former ao [553]*553count of the trustees was finally settled in this court, (see Bedloe v. Homer, 16 Gray, 432,) and that the probate court has no authority to set aside or open a decree so rendered, citing Baylies v. Davis, 1 Pick. 206. But that decision is not applicable, among other reasons, because it had reference to a proceeding entirely different from this. The account sought to be set aside or opened was a final account. The other decisions, cited in support of the position that matters once passed upon and allowed in a probate account are settled conclusively, unless mistake or fraud is shown, were before the adoption of the Revised Statutes, wherein the provisions under which these accounts have been opened were introduced as a new section. This court cannot, it is true, act otherwise than as an appellate tribunal. But the objections to the allowance of these accounts, as originally filed in the probate court, were, substantially, applications to have the former accounts reopened. The allowance of the accounts in that court, without hearing the objecting party, was a denial of leave so to open, them, which gives to this court jurisdiction to grant such leave, at least to the extent covered by the reasons of appeal as assigned.
In the account of the trustees, besides the charges disallowed by the court upon the former hearing, the master has now rejected several items of charge, not of very large amount. No exception is taken to these in detail; and no controversy is understood to be made here in regard to them, otherwise than upon the general grounds which we have already considered.
The appellant objects to the allowance by the master of $700 for special services in relation to the exchange of estates; and also to the allowance of three charges, amounting in all to $625, for the professional services of Mr. Blake. We are not prepared to hold that a lawyer, acting as trustee, and having occasion to perform professional services in behalf of his trust, may not be allowed in any case to receive from the trust fund the usual professional compensation for such special services. But such charges where the lawyer is his own client are open to serious question, because of the liability to abuse, or, at least, to the suspicion of abuse. They require the most careful scrutiny, and should be [554]*554left in no doubt, either as to the reasonableness of the charge or the propriety of the service. The three charges were allowed apparently upon the testimony of Mr. Blake. Of this testimony, and his finding thereon, the master reports : “ He did not specify the services, and it did not appear how professional service was necessary. But as services were performed, and the charges are not proved to be excessive, they are allowed.” If these charges stood alone, we might not disturb the allowance by the master; because, by the terms of the order of recommitment, the previous allowance by the probate court was to be regarded as primá fade evidence of the correctness of the accounts, except so far as dis-0 allowed by the-former decision.
There were however in the account several charges, not very specific, relating to the exchange of estates, among them the following : “ Professional services of E. Blake about sale of house on Beacon Street, &c., $300. Professional services of E.
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Wells, J.
By the decree, following the decision in 101 Mass. 592, this case was recommitted to the master with authority, among other-things, to report “ any facts, not stated in his former report, bearing upon the question whether the charge for commissions on income in the first account as guardian, and the charges relating to the exchange of real estate in the trustees’ account, were in fact heard and determined by the probate court as matters in dispute between the parties to these proceedings.” It was also ordered that this inquiry should not prevent the master from hearing the parties upon the several matters in controversy, and referred to him, “ as if the same were open for such hearing by leave of the court.”
The purpose and effect of these orders was to enable the appellees to present at this hearing both the question whdther the former accounts were open as a matter of right, and that of the propriety of their being opened by leave of the court, thus given. Subject to this revision, the former accounts were allowed to be opened in respect of the matters designated by the decree.
It is not necessary to consider minutely the effect of the additional facts reported and relied on to show that these matters were heard and determined by the probate court at the time the former accounts were allowed; because we are all satisfied that, if they could not be brought in question without leave of the court, that leave ought to be given, and was properly given. There was in reality no controversy or discussion in the probate court upon these objectionable charges; and whatever assent the guardian ad litem gave to the accounts was given without any communication with the ward, and was a mere formality.
It is contended that, under this provision of law, (Gen. Sts. o. 98, § 12,
It is further contended that the right and power thus to open former accounts is limited to cases where the same persons continue to represent the trust. Such is not the purport of the decision relied on for this position. Granger v. Bassett, 98 Mass. 462. The right depends upon identity of the estate or trust, and not of the accountants.
The consequences of a correction, when made, will depend of course upon the question whether the persons then representing the estate or trust are legally responsible for the previous maladministration or wrong disposition of the fund. In this case, the accountant Blake was and is responsible for the property which came into his hands from the time of the original appointment. Ames v. Armstrong, 106 Mass. 15. We find nothing in the facts reported, which would exempt him from liability for any improper disposition of any part of the estate or its income, although that disposition consisted in an excessive appropriation for payment of the charges of the trustees, in which his deceased co-trustee shared. The remedy of the cestui que trust may be had by, a correction of the account, leaving the surviving trustee to his claim over against the estate of his deceased associate. The new trustee will not, of course, be held responsible for funds which have never come to his hands or within his control, unless he neglects to take proper measures to secure the rights of his cestui que trust. Upon the correction of the account, the entries will .show the nature of the credit, so that the extent of the responsibility of the respective trustees will be made readily to appear.
Another objection urged by the appellees is, that the accounts can be opened only by proceedings to set aside the decree allowing the same, upon an application to be first made in the probate court, This position is coupled with another, that the former ao [553]*553count of the trustees was finally settled in this court, (see Bedloe v. Homer, 16 Gray, 432,) and that the probate court has no authority to set aside or open a decree so rendered, citing Baylies v. Davis, 1 Pick. 206. But that decision is not applicable, among other reasons, because it had reference to a proceeding entirely different from this. The account sought to be set aside or opened was a final account. The other decisions, cited in support of the position that matters once passed upon and allowed in a probate account are settled conclusively, unless mistake or fraud is shown, were before the adoption of the Revised Statutes, wherein the provisions under which these accounts have been opened were introduced as a new section. This court cannot, it is true, act otherwise than as an appellate tribunal. But the objections to the allowance of these accounts, as originally filed in the probate court, were, substantially, applications to have the former accounts reopened. The allowance of the accounts in that court, without hearing the objecting party, was a denial of leave so to open, them, which gives to this court jurisdiction to grant such leave, at least to the extent covered by the reasons of appeal as assigned.
In the account of the trustees, besides the charges disallowed by the court upon the former hearing, the master has now rejected several items of charge, not of very large amount. No exception is taken to these in detail; and no controversy is understood to be made here in regard to them, otherwise than upon the general grounds which we have already considered.
The appellant objects to the allowance by the master of $700 for special services in relation to the exchange of estates; and also to the allowance of three charges, amounting in all to $625, for the professional services of Mr. Blake. We are not prepared to hold that a lawyer, acting as trustee, and having occasion to perform professional services in behalf of his trust, may not be allowed in any case to receive from the trust fund the usual professional compensation for such special services. But such charges where the lawyer is his own client are open to serious question, because of the liability to abuse, or, at least, to the suspicion of abuse. They require the most careful scrutiny, and should be [554]*554left in no doubt, either as to the reasonableness of the charge or the propriety of the service. The three charges were allowed apparently upon the testimony of Mr. Blake. Of this testimony, and his finding thereon, the master reports : “ He did not specify the services, and it did not appear how professional service was necessary. But as services were performed, and the charges are not proved to be excessive, they are allowed.” If these charges stood alone, we might not disturb the allowance by the master; because, by the terms of the order of recommitment, the previous allowance by the probate court was to be regarded as primá fade evidence of the correctness of the accounts, except so far as dis-0 allowed by the-former decision.
There were however in the account several charges, not very specific, relating to the exchange of estates, among them the following : “ Professional services of E. Blake about sale of house on Beacon Street, &c., $300. Professional services of E. Blake, about resolve for sale of house, hearing before William J. Hubbard on claim or claims of interest against Muzzey’s estate, $200. Services of trustees about resolve, negotiations, &c., about sale of house and purchase of Howard Street estate, $1000.” The last charge was rejected by the court, and directed to be reexamined, among other reasons, because it appeared to cover the same services as the other two charges. By the order of recommitment, the master was authorized to “ hear the accountant and his evidence as to any services actually rendered by him in the execution of his said trusts, for which no charge has been made by him in his said accounts except the general charges which have been disallowed by this court; and if such have in fact been rendered, for which adequate compensation is not provided by the charges remaining in said accounts, he may report specifically what those services were, and what, in his judgment, would be a reasonable and proper compensation for the same.” The master has reported all the services of which evidence was offered by the accountant; and his conclusion thereon, as far as relates to the exchange of estates, is as follows: “ For all the special services connected with and growing out of the sale of the house, the purchase of three fourths of the Howard Street estate, the sale of one [555]*555fourth of the Howard Street estate, the making of the lease to Evans, the procuring of the resolve, the negotiations with Mr. Bartlett and Mr. Lawrence, the receiving and paying out of money, the master is of opinion that $700 would be a reasonable compensation.” We are of opinion that this finding and allowance leaves no room upon which the other two charges can be allowed to stand. The purpose of the investigation was to enable the accountant to show that “ the charges remaining in said accounts ” were not adequate, as compensation for all the special services actually rendered. To do this, it was incumbent upon him, as the foundation of any claim for further compensation, to show the character, extent and value of the services for which the charges remaining in the accounts were made. He has furnished such evidence as he saw fit, in regard to the services actually rendered, for which the master has allowed him full compensation. In the face of these considerations, he is not entitled to retain the other charges, relating to the same matters of service. The master, apparently, did not feel at liberty to reject the charges from the account, under the provisions of the order that the allowance by the .probate court was to be regarded as primá facie evidence of their correctness. But we think the statements of the report will not justify the retention of these charges in addition to the $700, found by the master to be a reasonable compensation for all the services disclosed, in relation to the same matters of charge.
For like reasons, there being a charge allowed for “ services of trustees about claim of Franklin Evans for $1500 in reference to estate in Howard Street, submitting same to referees, and attending hearing, $150,” we are of opinion that the further charge of $125, for professional services of Mr. Blake in relation to the same matter, should not be allowed, without distinct proof of the necessity or propriety, as well as the reasonableness of the charge. Upon the report of the master, it appears that the accountant failed to make such proof, and made no satisfactory disclosure in regard to it, although examined upon the subject. By the terms of the finding upon which the general allowance of $700 is made by the master, it covers the services for which the three special charges amounting to $625 were made by the accountant. That [556]*556amount being included in the other, should not remain as an additional charge in the account.
The exceptions to the three items of charge for professional services, amounting to $625, are therefore sustained, and those charges disallowed. Those to the allowance of $700, as reported by the master, are overruled, and the accountants are allowed to enter that charge in their final account.
This controversy is with one only of the two eestuis que trust, and she will of course be entitled to the benefit of the corrections made in the account, only to the extent of her proportion of interest in the estate. The other party interested was of age when the account was first settled, and her rights depend upon other considerations than those presented here. The adjudication affects only the adjustment with Mrs. Pegram of her share of the estate.
As to the guardian’s account, the charge of five per cent, upon all income received was disallowed at the former hearing, for reasons then stated. The accountant was allowed to show, to the satisfaction of the master, what his services in that capacity were, and what would be a reasonable compensation therefor. From the report, it appears that for several years there was a considerable surplus of income, which he neglected to invest specially in the name and for the benefit of his ward, but deposited with his own money, and used indiscriminately as his own and for his own purposes. Some four or five thousand dollars of it was represented by notes taken by him for land which he had sold. These notes he indorsed to himself as guardian ; and he credited to his ward’s account the interest as it accrued upon them, whether in fact paid or not. But the mortgages were retained in his own name ; and although foreclosed by him and the lands afterwards sold, he declined to account for the proceeds, otherwise than by crediting the amount of the principal of the notes, and refused to disclose whether or not he had made any profit from the foreclosure and resale of the lands.
Besides these investments, the surplus income in his hands had accumulated in July 1864 to $18,500. Interest was credited • annually upon the balances appearing at the end of each quarter. [557]*557The appellant claimed to be entitled to the profits, if any were made beyond the interest, from whatever nse her money had been appropriated to. In order to ascertain whether such profits were made, the accountant was called upon to exhibit his books of account, and to disclose the mode in which the money had been used or invested. This he declined to do, denying the right of the appellant to investigate his private affairs, or to inspect his personal accounts.
The appellant contends that, against a party who thus refuses to disclose the use he has made of his ward’s money, it is fairly to be presumed that he has derived profits from its use, sufficient at least to compensate him for the care of it, so as to deprive him of the right to charge other compensation; and that this presumption is especially strengthened when, as in this case, the money was mostly received at a time when currency and gold were equivalent, or nearly so, and paid over in currency or specially invested for the ward after the currency had depreciated to less than one half the value of gold. The court adopt this position of the appellant, and hold that the guardian is not entitled to charge any commission in this account.
This disposes of all the exceptions upon both sides, save one in regard to the proceeds of certain furniture sold, and credited in the trustees’ account. The appellant claims that the whole should have been credited to her, on the ground of a gift from her mother, who had a life interest, with power of disposal.
Upon this subject, the master finds that, although there was an expressed intention or desire on the part of Mrs. Homer that Isabel should have the furniture, yet “ there was no delivery, actual or symbolical, of the furniture or any part of it.” He therefore finds that there was no gift, and that the trustees took the property in the furniture, under the provisions of Mr. Homer’s will. This was a pure question of fact, which the master was competent to find conclusively; and we discover nothing in the report by which his finding can be impeached. This exception therefore is overruled.
The result is, that the accounts must be settled according to the master’s report, deducting from the trustees’ account the three [558]*558charges for professional services, amounting to- $625, and deducting from the guardian’s account the allowance of two and a half per cent, commissions. When thus adjusted, the balances will be , brought forward with proper credits of interest up to the present time.
Decrees accordingly.
Upon a hearing before Wells, J., for framing the final decrees, after the foregoing decision, the question arose whether simple or compound interest should be computed upon the amount of the corrections in the accounts. After conference by him with the whole court, it was ordered that interest be computed as if the corrections were made in the account of the years respectively in which the overcharges were made; thus giving compound interest until the close of the annual accounts, and simple interest since.
The appellee also asked, at this hearing, to be allowed to charge the funds in his hands for his expenses incurred in the controversy, or for some portion thereof. But upon like conference it was considered -that, as the controversy was occasioned in great measure by his own fault, he should not be allowed to charge any part of the expenses to the trust estate or to his ward.
This section provides that “ apon the settlement of any account by an executor or administrator, all his former accounts may be so far opened as to correct any mistake or error therein; except that any matter in dispute between two parties, which had been previously heard and determined by the court, shall not be again brought in question by either of the same parties without leave of the court.”