Guardian, Account. Probate Court, Decree. Evidence, Presumptions and burden of proof.
A decree of the Probate Court upon accounts of a guardian for two minor wards, brothers, ordering stricken from the accounts all items referring to an alleged investment in forty shares of the capital stock of a certain railroad corporation and charging the guardian with the amount of the investment with interest from the date when the investment was alleged to have been made, is warranted where the only evidence at the hearing on the accounts was testimony of the guardian, who testified that at the time of the alleged investment he had in his hands uninvested funds of the wards amounting to only $3,179.37, that the price paid for the stock was $5,823.12, that he personally advanced the amount needed beyond the funds in his hands as guardian, intending to repay himself from the dividends and from money that would come to the wards from time to time from the estate of the wards' grandfather, that the certificates for the shares were taken and had remained in his individual name, one being for twenty-five shares and one for fifteen shares, that they were kept in a safe deposit box standing in his individual name, and that he kept no record nor account which would show that the stock ever belonged to the wards.
A decree of the Probate Court upon an account of a guardian which reduces an item in schedule B, "Fees, as guardian," from $500 to $250 is warranted upon evidence which tends to show that the period covered by the account was from 1904 to 1920; that the amount of schedule A as finally allowed was $12,630.27, of schedule B was $581.50 and of schedule C was $12,048.77; that the guardian was a lawyer, that he signally failed to perform his duties as guardian in many respects; that the funds of the ward remained uninvested for long periods; that he kept no record or account that would enable any one in the event of his death to determine what money and securities he held for each of the wards; that he filed no account in the Probate Court until 1920; that his bond was for only $1,000 and that one of the sureties thereon had been dead for ten years, and that an alleged investment in capital stock of a certain railroad corporation had been disallowed by the court.
De COURCY, J.
Edward S. Townsend's account as guardian of his son Charles E.S. Townsend, covered the period from the beginning of the guardianship in April, 1904, until Charles became of age in May, 1919. His account as guardian of his son Newell C. Townsend was from April, 1904, to July 15, 1920. The Probate Court disallowed the item in each account of an alleged purchase in June, 1911, of twenty shares of the stock of the New York, New Haven and Hartford Railroad; and charged the guardian with the purchase price and interest. The court also reduced the guardian's fees from $500 to $250 on each account. His appeal from these modifications is before us, with a transcript of the evidence, but without any findings of fact. The decree must stand unless an examination of the evidence shows that it was plainly wrong. Dickinson v. Todd, 172 Mass. 183. Wier v. American Locomotive Co. 215 Mass. 303, 307. Burns v. Hovey, 242 Mass. 363.
It appears in evidence that the appellant bought the New Haven stock in June, 1911, paying therefor $145.50 per share and commissions, amounting to $5,823.12. The certificates were taken in his individual name, one for twenty-five shares and one for fifteen shares; and they have always so remained. He kept no record or account which would show that this stock ever belonged to his wards; and the safe deposit box in which the certificates were kept stood in his name. The stock has paid no dividends since September, 1913. He testified that he had only $3,179.37 uninvested belonging to his wards at the time when he bought it; and that he advanced the balance, intending to repay himself from the dividends and from money that would come to the wards from time to time from the estate of their grandfather. The judge who heard the case apparently did not credit this uncorroborated testimony, but treated the stock as that of the appellant, and credited to him the $380 received as dividends. We cannot say that the Probate Court was wrong in charging the accountant with the amount he claimed to have so paid, and interest thereon at four per cent to the date of the decree.
The same conclusion is reached as to the amount allowed to the guardian for services. From the examination of the appellant it appears that although as a lawyer he presumably was familiar with the duties of a guardian, he signally failed to perform them in many respects. The funds of his wards remained for long periods uninvested; he kept no record or account that would enable any one in the event of his death to determine what money and securities he held for each of the wards; he filed no account in the Probate Court until the present ones; his bond is for only $1,000 and one of the sureties has been dead for ten years; and his alleged investment of funds of the wards in said New Haven stock has been disallowed by the court.
Decree affirmed.