Bohn v. Bohn's Guardian

• Decision Date: 21 May 1929
• Parties: BOHN v. BOHN'S GUARDIAN.
• Court: Kentucky Court of Appeals

17 S.W.2d 712

229 Ky. 608

BOHN v. BOHN'S GUARDIAN.

Court of Appeals of Kentucky

May 21, 1929

Appeal from Circuit Court, Kenton County, Criminal, Common-Law and Equity Division.

Final accounting by Stephens L. Blakely as guardian for Mary Flarherty Bohn. Judgment sustaining the action of the county court in confirming the settlement, and the ward appeals. Affirmed.

Barbour & Bassmann, of Newport, for appellant.

John H Klette, of Covington, for appellee.

WILLIS J.

This is a controversy between a guardian and his former ward over certain items contained in a final accounting of the guardian's stewardship. Stephens L. Blakely, an attorney of high standing at the Covington bar, was, on June 21, 1923 appointed guardian of Mary Flarherty, and continued to act as such for about 5 years, until his ward became 21 years of age. When his final settlement was filed in the county court it appears that exceptions were filed to three items contained therein, but the written exceptions are not found in the record. The county court heard evidence, however, and a transcript of the evidence is in the record. The settlement was confirmed, and upon an appeal to the Kenton circuit court the action of the county court was sustained. This appeal has been prosecuted by the former ward, who is now married, and it is insisted that the allowance of $1,500 to the guardian was excessive, that an expense of $250 incurred by him in payment of counsel fees was unauthorized, and that the guardian should be charged with an item of $500 paid to the Liberty National Bank in settlement of an obligation executed by the infant and now repudiated by her.

The appellee insists that the allowances were proper and that the entire account should be confirmed, but presents a preliminary question of practice. It is said that this court, in the absence of the written exceptions, may not consider the case on its merits. It is true that this court will not revise or reverse an order of a circuit court, confirming a settlement made in a county court, where no written exceptions have been filed. In such cases there is no judicial contest, but the order of confirmation partakes rather of the character of a ministerial act. The settlement, and its confirmation, without exceptions, are not conclusive upon the parties interested or the court, which may order another settlement to correct errors later discovered in the first settlement. The remedy for revision of such ex parte orders is by a suit in equity to surcharge. Turley v. Barnes, 103 Ky. 127, 44 S.W. 446, 20 Ky. Law Rep. 1808.

It is apparent from the record that exceptions were filed in the county court, and their presence here would not clarify any issue involved. It is shown by the evidence that both litigants understood clearly the basis of the controversy, and directed the proof definitely to objections specifically expressed. In such case the parties are bound; the act of the court is judicial and excludes the remedy in equity. The party aggrieved must take an appeal for a correction of any errors. We conclude, therefore, that the record is sufficient to present the questions argued on this appeal, and that both litigants were fully advised of the issues to be tried.

The allowance to the guardian is discussed by the appellant as though it was based solely upon the receipt and disbursement of money and property. It is said that the total gross receipts were slightly in excess of $13,000, and that an allowance of 5 per cent. thereon would be reasonable. Commonwealth v. Graves County Banking & Trust Co., 159 Ky. 455, 167 S.W. 411. But the discussion proceeds upon a misapprehension of the record. The guardian did more than handle the personal estate of the infant. He was her adviser and servant for approximately 5 years, and the demands upon him were continuous and important. It is proven without contradiction by members of the bar of high standing that the amount fixed by the county and circuit courts was reasonable. The guardian was not confined merely to a commission on the funds handled, but he was entitled to reasonable compensation for his other services. Commonwealth v. Graves County Banking & Trust Co., supra.

We are asked to substitute our judgment on the facts for that of the county court and circuit court, and to disregard all the evidence in the case as to the value of the services. It is essential that the estates of infants be protected from unreasonable charges, but it is equally essential that infants should have competent advice and faithful service, which cannot be obtained if the allowances are unreasonably low. The courts will scrutinize with care the acts of fiduciaries, but will be equally diligent to see that those who have been responsible for the welfare of wards should not be penalized. Whilst the court is not bound by the opinions of witnesses as to the reasonableness of compensation allowed, yet the primary duty rests upon the county court, and it must fix a reasonable compensation to the guardian for his services. Kentucky Statutes, § 2036; Campbell v. Golden, 79 Ky. 544; Bell v. Bell's Guardian, 167 Ky. 430, 180 S.W. 803; Wheeler v. James & James (Ky.) 120 S.W. 350.

The uncontradicted evidence shows that for five years the guardian was called upon constantly for counsel and service and that he...