Bell v. Bell's Guardian

• Decision Date: 17 December 1915
• Citation: 167 Ky. 430,180 S.W. 803
• Parties: BELL v. BELL'S GUARDIAN.
• Court: Kentucky Court of Appeals

180 S.W. 803

167 Ky. 430

BELL v. BELL'S GUARDIAN.

Court of Appeals of Kentucky.

December 17, 1915

Appeal from Circuit Court, Mercer County.

Action by W. P. Harvey, guardian of W. Con Bell, against W. Con Bell. From a judgment, the defendant, by his guardian ad litem, appeals, and the guardian prosecutes a cross-appeal. Judgment on the cross-appeal affirmed; on the original appeal reversed.

R. W Keenon, of Harrodsburg, and O'Rear & Williams, of Frankfort, for appellant.

Robert Harding, of Danville, E. H. Gaither, of Harrodsburg, and Kohn, Bingham, Sloss & Spindle, of Louisville, for appellee.

CLAY C.

William Con Bell, an infant about 18 years of age, is the owner of a farm in the suburbs of Harrodsburg, consisting of 287 acres another farm consisting of about 100 acres, near Rose Hill in Mercer county, and six storerooms on Main street in Harrodsburg, all of which he acquired under the will of his grandfather, William Payne. On September 1, 1910, his grandfather, W. P. Harvey, was appointed his guardian. The infant's mental and physical condition is such as to require special care and training. With this end in view, the guardian placed him in an institution at Lake Geneva, Ill where he is maintained at an expense of from $1,400 to $1,500 per annum. When the guardian took charge of the infant's property, he found it in a badly dilapidated condition. Not only were the storerooms in need of repair, but the farm in Harrodsburg had been suffered to run down until the income therefrom was largely depreciated. The guardian built a tobacco barn, restored the fencing, repaired the other buildings thereon, cut the weeds, manured the farm, and increased the vendible value thereof from $10 to $15 per acre. He also repaired the storerooms. On September 1, 1912, the guardian filed with the judge of the Mercer county court a settlement covering his guardianship from August 1, 1910, to September 1, 1912. According to this settlement, he expended, in the care and education of his ward and in the improvement of the property, about $13,377.16, and received as income $5,237.86, leaving a deficit of $8,139.28. This settlement was approved by the Mercer county court. On April 21, 1913, the guardian instituted this suit against his ward, in which he asked for a settlement of his accounts and approval of the expenditures which he had made for and on behalf of his ward's estate, and for judgment against the ward's estate for the balance due him. By amended petition, he asked for a sale and reinvestment of the farm in Harrodsburg. A guardian ad litem was appointed to defend for the infant defendant. During the progress of the action the guardian ad litem filed an answer and counterclaim, asking for the removal of the guardian for neglect and breach of trust.

A large number of issues were presented by the pleadings. The case was referred to the master commissioner to hear proof and report a settlement. Each side filed numerous exceptions to the report. On final hearing the chancellor held that the estate of the ward was indebted to the guardian in the sum of $3,827.82, the amount advanced for the maintenance and education of his ward and the improvement of his property. This sum was directed to be paid to him out of the future income of the estate after first paying the expenses of the estate and ward. W. P. Harvey was retained as guardian of the person of the ward, but removed as guardian of the ward's estate, and the State Bank & Trust Company appointed in his stead. The guardian was allowed 5 per cent. commission on the amounts paid out by him. The guardian ad litem was allowed a fee of $1,000. E. H. Gaither was allowed an attorney's fee of $300 for services rendered in surcharging and contesting the settlement of a former guardian. For their services in this action, E. H. Gaither and Robert Harding, attorneys for the guardian, were allowed attorneys' fees of $1,000. From the judgment so rendered the guardian ad litem appeals, and W. P. Harvey prosecutes a cross-appeal.

1. The first question presented is the propriety of the chancellor's action in removing W. P. Harvey as guardian, and appointing the State Bank & Trust Company in his stead. The point is made that as the guardian ad litem was appointed solely for the purpose of defending in the particular suit, he had no right to raise the question of the fitness of the guardian, and that the facts themselves are not sufficient to authorize his removal. While it is true that the power of a guardian ad litem is strictly limited to matters connected with the suit in which he is appointed, and his acts with respect to the infant's rights concerning any other matters are unauthorized, yet he is a full representative of the rights and interests of the infant for the particular case in which he is appointed, and to that end is clothed with as full and perfect authority for that suit as the general guardian is for all the duties incident to his office. He should look after the interests of the infant and act for him in all matters relating to the suit as the infant might act for himself if he had the capacity to do so. His duty requires him to acquaint himself with the rights, both legal and equitable, of his ward, and to take all necessary steps to defend and protect them, and to submit to the court for its consideration and decision every question involving the rights of the infant affected by the suit. 22 Cyc. 661, 662. If he is required to take all the necessary steps, both legal and equitable, to defend and protect the rights of the ward, certainly he may file an answer and counterclaim in behalf of the ward. Section 96 of the Civil Code provides:

"A counterclaim is a cause of action in favor of a defendant against a plaintiff, or against him and another, which arises out of the contract, or transactions, stated in the petition as the foundation of the plaintiff's claim, or which is connected with the subject of the action."

Manifestly, where a guardian brings suit for the settlement of his accounts and recovers of the ward's estate sums advanced for his education and support and for the preservation of his estate, and the record itself shows neglect or breach of trust on the part of the guardian, his fidelity and fitness for the position are so "connected with the subject of the action" as to make his removal a proper ground for counterclaim. We think it clear, therefore, that the guardian ad litem had the right, by counterclaim, to allege facts showing neglect or breach of trust on the part of the guardian and ask his removal.

Section 2039, Kentucky Statutes, provides:

"The several courts of chancery shall have power to hear and determine all matters between guardian and ward, require settlements of the guardianship accounts, remove a guardian for neglect or breach of trust, control the custody and tuition of the ward and the management and preservation of his estate, and direct the sale of

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