Alcon v. Koons

• Decision Date: 01 November 1907
• Docket Number: No. 5,955.,5,955.
• Citation: 42 Ind.App. 537,82 N.E. 92
• Parties: ALCON v. KOONS.
• Court: Indiana Appellate Court

42 Ind.App. 537

82 N.E. 92

ALCON

v.KOONS.

No. 5,955.¹

Appellate Court of Indiana, Division No. 2.

Nov. 1, 1907.

Appeal from Circuit Court, Marion County; H. C. Allen, Judge.

Judicial accounting by Charles Alcon, as guardian of the estate of William H. Koons. Exceptions were filed to his report, and, from an order sustaining certain of them and rendering judgment against him for $1,703.16 and costs, he appeals. Affirmed.

C. E. Weir and Edgar A. Brown, for appellant. John Coburn, S. A. Haas, Harding & Hovey, and A. U. Newman, for appellee.

ROBY, J.

Appellant on August 29, 1902, filed his final report as guardian of the appellee, who was in September, 1897, adjudged to be a person of unsound mind, and on July 3, 1902, adjudged to be of sane mind. In such report he set out a detail of his receipts and expenditures, averred that the trust was fully administered, prayed for the allowance of certain sums for his services and for attorney's fees, and “that the report be approved and the trust declared closed upon the payment into court by the ward of such sum as necessary, in addition to the cash balance in the guardian's hands, to discharge the advances made to the guardian and his attorney.” The appellee filed written objections to the approval of this report, a trial was had, special findings of fact made, conclusions of law stated, and judgment rendered against appellant for $1,703.16 and costs. In the trial of exceptions to a guardian's report it is proper practice upon request to find the facts specially and to state conclusions of law thereon. Swift v. Harley et al., 20 Ind. App. 615, 49 N. E. 1069;Wysong v. Nealis et al., 13 Ind. App. 165, 41 N. E. 388;Peterson v. Erwin, 28 Ind. App. 330, 62 N. E. 719;Wainright v. Burroughs, 1 Ind. App. 393, 27 N. E. 591.

The exceptions were sustained as to three matters therein specified and overruled as to all others. It will only be necessary to consider those in which the specifications were sustained. The second finding is substantially as follows: That on September 22, 1897, appellee was the owner of an equity of redemption in lot 32, in Lockwood & McLean's addition to the city of Indianapolis, and that said real estate was sold on decree of foreclosure July 17, 1897, for $655.37. That from the appointment of appellant as guardian until July 16, 1898, the lot was reasonably worth fully $800 more than the amount necessary for its redemption, and that appellant, as guardian, carelessly and negligently failed to make any reasonable effort to sell or dispose of his ward's equity in said property at any time during the year allowed by law for the redemption thereof, and further negligently failed to convert other property belonging to his ward into money with which to redeem the said property. That the guardian did not exercise the care and prudence in the management of the estate that an ordinarily prudent man employs in his own affairs, and that by reason of his carelessness and negligence the guardian had damaged the trust in the sum of $800. The third finding is a practical duplicate of the second, describing a different lot worth $200 more than the amount necessary to redeem. The duty of the guardian is “to manage the estate for the best interest of his ward.” Section 2685, subd. 2, Burns' Ann. St. 1901. The discharge of this duty depends “largely if not wholly upon the condition of the estate.” Ray v. McGinnis, 81 Ind. 451, 454. In the case cited the guardian was recompensed for money borrowed by him to discharge incumbrances upon his ward's land. See, also, Taylor v. Calvert, 138 Ind. 67, 78, 37 N. E. 531, and Jones v. Crowell, 143 Ind. 218, 42 N. E. 612. If a guardian fails to render an account of his trust every two years, he is liable to a penalty of 10 per centum of the entire estate, and shall receive no allowance for services. Section 2685, subd. 3, Burns' Ann. St. 1901. “Its obvious purpose is to require guardians having charge of the estates of minors to furnish in permanent and reliable form from time to time statements of the condition of estates intrusted to their management for the information of the proper court and the protection of wards.” Eiceman v. State ex rel. Leonard, 75 Ind. 46, 48. It is not only the statutory duty of a guardian to manage the estate for the best interest of his ward, but he is “specifically required” to pay all just debts due from the ward out of the estate in his hands. Section 2685, subd. 5, Burns' Ann. St. 1901. “Whenever necessary for the *** payment of the just debts of any minor or for the discharge of any liens on the real estate of such minor the court may upon the application of such guardian order the sale of the ward's real estate or a portion thereof.” Section 2692, Burns' Ann. St. 1901. In an application for such sale the guardian is required to set forth in detail the facts connected with the estate. Section 2693, Burns' Ann. St. 1901; Slauter v. Favorite, 107 Ind. 291, 4 N. E. 880, 57 Am. Rep. 106;State ex rel. Millice v. Petersen, 36 Ind. App. 269, 75 N. E. 602. It follows from the specific duties imposed upon guardians by the statute, as well as from the general character of the trust, that it was the duty of the appellant to know every fact upon which the exceptions taken to his report depend, and, knowing them, to communicate them to the court for its information and the protection of the ward. If he had filed a petition for an order to sell the real estate of the ward, it would have been necessary to set out therein the value of the various tracts and the amount of incumbrance thereon. Had this been done and an order of sale made, but no property sold for lack of buyers, the guardian would occupy a much different position. If he had made a full report, upon which, after investigation, the court had concluded it was useless to offer the lands for sale, the guardian would not, in the absence of fraud, be liable for anything. The ward was not under any duty to instruct the guardian or advise the court. The only reason for a guardianship lay in his inability. It follows that, when a guardian files a report and exceptions are taken to it, the burden is upon him to establish facts entitling him to an order of discharge. “The administrators were required to establish the correctness of their report in respect to such matters as were embraced in the exceptions filed by the appellants.” Hamlyn v. Nesbit, 37 Ind. 284;Taylor v. Burk, 91 Ind. 252;Wysong v. Nealis, 13 Ind. App. 165, 169, 41 N. E. 388.

The guardian filing a final report and seeking to be discharged is regarded as the plaintiff. Brownlee v. Hare, 64 Ind. 311, 316;Spray v. Bertram, 165 Ind. 13, 74 N. E. 502; Taylor v. Burk, supra; Johnson v. Central Trust Co., 159 Ind. 605, 65 N. E. 1028. The burden of proof is, however, for the purposes of this case immaterial. The facts stated in findings 2 and 3 are sufficient to establish appellant's liability in any view which can be taken. The standard of care required from a guardian is that of an ordinarily prudent man. Slauter v. Favorite, supra; Wainright v. Burroughs et al., 1 Ind. App. 393, 27 N. E. 591. An ordinarily prudent man owning a city lot incumbered to the amount of $655.35, it being “reasonably worth fully” $800 in excess of the mortgage, will make a reasonable effort to protect or realize upon his equity. The appellant did not make such effort. It was his duty to do so, and the finding that he did not makes a case against him. In Wainright v. Burroughs, supra, it was found that the guardian endeavored to secure a purchaser for the property, and failed to do so. Nothing of the kind appears in the finding under consideration. If there was any doubt that a man of ordinary prudence would make a reasonable effort to protect his property under the circumstances described, such doubt is removed by the application of the well-established rule by which when diverse inferences may be drawn the question becomes one of fact. Republic Iron & Steel Co. v. Jones, 32 Ind. App. 189, 69 N. E. 191. The damage might be nominal (Buchanan, Adm'r, v. State ex rel., 106 Ind. 251, 6 N. E. 614), but the liability is to compensate the actual loss, and that is prima facie the value of the thing lost, and it devolved upon the appellant to show that the land was, with the diligence he was bound to exercise, worth less (Harlan v. Brown, 4 Ind. App. 319, 324, 30 N. E. 928;Latham v. Brown, 16 Iowa, 118;Downer v. Madison Co. Bank, 6 Hill [N. Y.] 648).

The judgment does not in all respects follow the conclusions of law, but, in the absence of a motion to modify or correct it in the trial court, the correction cannot now be insisted upon.

Judgment affirmed.

MEYERS, WATSON, and HADLEY, JJ., concur.

COMSTOCK, C. J., and RABB, J., dissent.

COMSTOCK, C. J. (dissenting).

Action arising upon the exceptions filed to the final report of Charles Alcon, guardian of William H. Koons, a person of unsound mind.

Appellant was appointed guardian of William H. Koons, the appellee, a person of unsound mind, by the circuit court of Marion county, on the 22d day of September, 1897, and served as such guardian until July 3, 1902, on which date said Koons was adjudged by the same court to be a person of sound mind. Appellant, as such guardian, filed his final report in said circuit court on August 29, 1902, in which he charged himself with a balance of $672.17. Appellee on August 12, 1904, filed his amended exceptions to this final report, in which he made five separate objections thereto and alleged as follows: First. That at the time he was declared of unsound mind he was the owner of lot 32, in Lockwood & McLean's addition to the city of Indianapolis, which consisted of a lot with dwelling house thereon, and that it was of the value of $2,500; that it was incumbered by a mortgage for $500, which had been foreclosed prior to the appointment of appellant as guardian, and that under a proper decree it had been sold to the mortgagee on July...