Townsend v. Townsend

Crosby, J.

This is an action of contract brought in the Superior Court to recover the amount shown to be due on a guardian’s account. The account is entitled "Guardian’s 1st Account,” and was allowed by decree of the Probate Court before the present action was instituted. It shows a large balance due the plaintiff, who was the ward of the defendant. The plaintiff became of full age on May 7, 1919. The period covered by the account ended on the fifteenth day of May, 1919. No evidence was offered by the defendant, who requested the court to rule that it had no jurisdiction over the parties and that there was a variance between the declaration and the account annexed. The requests were rightly denied. The Superior Court has jurisdiction over the cause of action and the parties. Although a *113guardian has a right to have his accounts adjusted and the amounts due to or from him determined in the Probate Court, he may be required in a proceeding at law to pay over to the ward on the coming of full age the amount due after such adjustment and determination in the Probate Court. Green v. Gaskill, 175 Mass. 265, 269. An action at law can be maintained for an amount due shown in the guardian’s account, under the circumstances here disclosed. The contention of the defendant that the sole remedy of the plaintiff , is in the Probate Court cannot prevail. Whether the account is a final one need not be determined; the defendant offered no evidence tending to show that it was not a final account. Dorey v. Dorey, 248 Mass. 359. The facts stated in Ensign v. Faxon, 229 Mass. 231, and in McIntire v. Ensign, 232 Mass. 83, have no pertinency to those here disclosed. There was no variance between the declaration and the proof.

Exceptions overruled.