Murray v. Wood

10 N.E. 822, 144 Mass. 195, 1887 Mass. LEXIS 151

Opinion

Field, J.

Although Murray ceased to be guardian when his ward reached the age of twenty-one years, his liability on account of property which came into his possession as guardian cannot be determined by a Court of Insolvency. His accounts are to be settled in the Probate Court. If he refuses to settle his accounts, or to pay over to the ward the amount found due on such settlement, the remedy is by an action at law upon his bond, which must be brought in the Supreme Judicial Court in the name of'the judge of probate. Pub. Sts. c. 139, § 22; c. 143, §§ 18, 19.

It is probably true that, if he neglects or refuses to render any account, the Probate Court can still proceed to take an account, and determine how much is due from him, even if he is beyond the reach of process. Such a proceeding may be necessary, when the bond for any reason was invalid, or the penalty was insufficient; but, until the amount has been determined in the Probate Court, an action cannot be maintained, either at law or in equity, in the .name of the ward against a former guardian to recover what is due on a settlement. As this amount had not been determined in the Probate Court, and as no suit had been brought and no judgment obtained upon the bond, the plaintiff had, when she presented her claim, no provable debt against the estate in insolvency. Brooks v. Brooks, 11 Cush. 18. Loring v. Kendall, 1 Gray, 305. McLane v. Curran, 133 Mass. 531. Exceptions overruled.