Caldwell v. Morgan

• Decision Date: 01 January 1858
• Citation: 21 Tex. 800
• Parties: J. C. CALDWELL AND OTHERS v. YOUNG & MORGAN.
• Court: Texas Supreme Court

21 Tex. 800

J. C. CALDWELL AND OTHERS

v.YOUNG & MORGAN.

Supreme Court of Texas.

1858.

In a suit against a guardian to charge the estate of his ward, for services rendered as attorneys at law, the petition must allege that the employment of the plaintiff was a reasonable and proper expense incurred by the guardian, and on the trial prove it, as the guardian would have to do if he paid it, and sought to have it allowed.11 Tex. 159, 359;25 Tex. 769.

That the employment is a reasonable and proper expense is not determined by the test of success or failure; the true test is, whether a prudent man, under all the circumstances as they existed at the time, would judge it proper and necessary to make such employment for the interest of his ward.

Error from Red River.Tried below before Hon. W. S. Todd.

The record shows that the defendants below demurred to the petition, and that it was overruled.This ruling is assigned as error.There is no statement of facts.

J. A. N. Murray, for plaintiff in error.

S. H. Morgan, for defendants in error.

ROBERTS, J.

So far as the judgment has been rendered against Martha L. Caldwell, as late widow of James H. Johnson, there can be no error, as the record is now presented.

Whether the judgment against her and her husband, as guardians of the minor heirs of James H. Johnson, deceased, is correct, requires some attention.The claim was duly authenticated and presented to the guardians, and by them rejected.In the suit, brought upon it for the purpose of reaching the property of the minors through their guardians, the petition does not allege that the employment of plaintiffs below, as attorneys, in the prosecution of the suit, was a reasonable and proper expense incurred by the guardians.And for the want of such allegation we think there was no foundation, for the recovery against them as guardians, so as to reach the minors' estate.

The attorneys, upon being retained and performing the services, had their choice of two remedies.They could hold Martha C. Caldwell responsible individually, or they could present their claim, as in this case, to the guardians, and if rejected bring suit on it, by placing themselves, in respect to the estate, in the place of the guardians.For certainly if their employment was such an expense, as that the county court would not be authorized to allow it to the guardians, then they ought not to recover it from the guardians, so as to reach the minors' property.The statute provides, that “it shall be the duty of the guardian of the estate of a minor to take care of and manage such estate in such manner as a prudent man would manage his own estate; and all necessary and reasonable expenses incurred by such guardian in the safe keeping, preservation and management of his ward's estate, and all necessary and reasonable expenses incurred by him in collecting claims or debts due to his ward, or in recovering property to which his ward has a title or claim, shall be allowed to such guardian by the chief justice, on proper proof, to be paid out of the estate of his ward.”Hart.Dig. art. 1551.The next article authorizes the guardian “to sue and defend for his ward, in all suits or actions necessary to be prosecuted for or against him.”Id.art. 1552.

The allowance to the guardian is not to be determined by the test, or...