Cummings v. Cummings , 123 Mass. 270 ( 1877 )

Gray, C. J.

At the settlement of a guardian’s account in the Probate Court after the death of his ward, it would ordinarily be the duty of the administrator of the estate of the ward to maintain the rights of the next of kin. But in the present case, the same person being administrator and guardian, the widow and children of the ward were the only persons who contested the account of the guardian. They clearly had such an interest in the estate of the ward as to be entitled to contest the guardian’s account in the Probate Court, and, if dissatisfied with its decree in the matter, to appeal therefrom. Gen. Sts. c. 117, § 8u Penniman v. French, 2 Mass. 140. Boynton v. Dyer, 18 Pick. 1. Farrar v. Parker, 3 Allen, 556, 558.

The decree of the Probate Court in that controversy between them and the guardian, by which it was determined that the notes in question were his private property,^not having been appealed from, was a conclusive adjudication of that fact as between them and him, and could not afterwards be reopened between the same persons upon their objections to his account as administrator, either in the Probate Court, or in this court on appeal from the decree of that court upon the administrator’s account.

Although only part of the notes had been collected by the guardian at the time of the settlement of his final account as such, the question whether the notes were his own property was necessarily involved, and was then tried and determined, and the fact so determined was res adjudicata in a subsequent litigation between the same persons as to sums afterwards collected by him upon the same notes. Merriam v. Whittemore, 5 Gray, 316. Black River Savings Bank v. Edwards, 10 Gray, 387. Burlen v. Shannon, 99 Mass. 200.

Decree of Prohate Court affirmed.