May v. May , 109 Mass. 252 ( 1872 )

Ames, J.

The ward in this case is an unmarried man, about sixty-five years of age, and the owner of a large amount of property, yielding an income of at least $12,000 annually. Nobody can be said to be dependent upon him, or to have an interest in the final disposition of his estate, in any such sense as to need any special or peculiar protection from the law. His immediate relatives are all of them persons of large property, and he does not appear to be connected with any of them by any close ties of intimacy or friendship. He is put under guardianship, partly for the constant direction and care of his personal habits, and attentian to his wants, and partly because he has not sufficient intelligence for the transaction of business and the management of his property. The guardian is appointed for the welfare, comfort and security of the ward; and not for the increase of the estate in his hands by accumulations from the income, in order to enlarge the wealth of remote or collateral relatives who may ultimately succeed to the inheritance It is no part of his duty to diminish the reasonable comforts of his ward, or to prevent him from enjoying such luxuries, or indulging such tastes, as would be allowable and proper in the case of a man similarly situated in other respects, but in the full possession of his faculties.

In Oxenden v. Compton, 2 Ves. Jr. 69, Lord Eldon says that in the management of the estate the guardian should attend “ solely and entirely ” to the interest of the owner, without looking to the interest of those who, upon his death, may have eventual rights of succession ; “ and nothing could be more dangerous or mischievous than for him to consider how it would affect the successors,” as the ward is the only person he is bound to take care of. He adds that the court will always shut out of view all eventual interests, and will consider only the immediate interests of the person under its care. To the same general effect are the other cases cited by the appellee, of Ex parte Baker, 6 Ves. 8; Dormer’s case, 2 P. W. 262; Ex parte Whitbread, 2 Meriv. 99; In re Persse, 3 Molloy, 94; Kendall v. May, 10 Allen, 59.

The case finds that the ward is fond of domestic animals; that the keeping and use of horses is the principal comfort and enjoyment of his life, if not absolutely necessary to his health; and that the stable accommodations which he now has are scanty, and not at all in keeping with his dwelling-house and domestic establishment generally. Under such circumstances, the question is not whether the proposed outlay for the construction of the new stable is strictly judicious and expedient in an economical sense; nor whether a trustee, acting for the benefit of minors, and bound to increase the fund in his hands by all proper means, would be justified in incurring such an expenditure ; but whether it would be unreasonable and extravagant to allow such an investment from this particular estate. We do not think that when the max> agement of the property is taken out of the ward’s hands, for his own good, the law intends to deprive him of the enjoyment of his wealth, except so far as the necessity of the case absolutely requires. We see no reason why the wishes and tastes of the ward may not properly be considered in such cases, provided the expenditure is for a purpose that is unobjectionable in itself and can be afforded without material inconvenience to his financial position, especially where there is neither wife nor child whose interests can be affected unfavorably. It could not be said to be an unreasonable expenditure for a man of like fortune and circumstances not under guardianship ; and we think that the fact of guardianship furnishes no sufficient ground, in the present case, for its disallowance. The decree of the judge of probate in this respect is therefore affirmed.

With regard to the guardian’s account, the charge of five per cent, upon the gross amounts collected is not objected to by the appellants. The charge of one hundred dollars per month, for the services of the guardian in the personal charge of the ward, although apparently somewhat large, is in our opinion justified by the evidence. This item, as we understand it, does not apply to the services of the guardian in the management of the property. The evidence satisfies us that the visits of the guardian to the ward, which were very frequent and occupied a large portion of the guardian’s time, were of great benefit and advantage to the ward, have greatly improved his condition, and are not overcharged in the guardian’s account. But these two items of charge appear to us to furnish a full compensation for the ordinary duties of the trust, and for the time devoted to personal attentions and services directly to the ward. We disallow therefore the charges for extra attendance of the guardian at court and for his personal attendance upon the ward in two journeys.

With regard to the sale of real estate and the reinvestment of its proceeds, and also with regard to the remodelling of the dwell-, ing-house and the repairs of other estates, we are of opinion that the allowance of compensation in the shape of a commission upon the amount expended is objectionable. It is contrary to public policy, and in conflict with tüe true nature and purpose of such trusts, that a guardian should be a gainer by frequent changes of investment, or that his compensation should be increased by increasing the amount of expenditures on the ward’s account. Any specific services, not included in the ordinary range of the guardian’s duties, may be charged in his account, and it will be the duty of the judge of probate to make such reasonable allowance for them as their importance and difficulty might require. The true principle would be, adequate reward according to the circumstances of the case. Post v. Jones, 19 How. 150. We should however be very unwilling to sanction the practice of putting that compensation in the form of a commission upon the amount expended or reinvested, and therefore we cannot allow these charges in their present form.

As the guardian has adopted a system of monthly accounts, carrying the balance forward every month to the next succeeding account, it does not appear to us that his monthly charge of interest is open to objection.

Decree reversed as to all items except the first and fourth.