Commonwealth v. Graves County Banking & Trust Co.

• Decision Date: 09 June 1914
• Citation: 167 S.W. 411,159 Ky. 455
• Parties: COMMONWEALTH ET AL. v. GRAVES COUNTY BANKING & TRUST CO.
• Court: Kentucky Court of Appeals

167 S.W. 411

159 Ky. 455

COMMONWEALTH ET AL. v. GRAVES COUNTY BANKING & TRUST CO.

Court of Appeals of Kentucky.

June 9, 1914

Appeal from Circuit Court, Graves County.

Action by the Commonwealth of Kentucky and others, for the benefit of Harry J. Hendley, against the Graves County Banking &amp Trust Company. From a judgment for defendant, plaintiffs appeal. Reversed, with directions.

W. P Lee, of Mayfield, for appellants.

W. J Webb and Gus Thomas, both of Mayfield, for appellee.

CARROLL J.

The question in this case is the amount of compensation that a guardian is entitled to charge for receiving and paying out the money in his ward.

This suit was brought in the name of the commonwealth, for the benefit of Harry J. Hendley, against the Graves County Banking & Trust Company, for the purpose of surcharging the settlements made by it in the county court as the guardian of Hendley.

The trust company was appointed guardian in May, 1894, and continued to act in this capacity until March, 1909, when it resigned and finally settled its accounts as guardian. There came into its hands as guardian in 1894, 1895, 1896, and 1897 sums of money aggregating, together with the interest it was charged, $1,624.95.

The first settlement of its accounts in the county court was made in December, 1907, and, between the time of its appointment as guardian and this date, it had paid out on accounts against its ward $385.95. In this settlement the guardian was given credit by this amount, and also by an allowance for "personal services of $68.25." In addition to this, it was credited by $3, court fees, making the total credit $457.20, which, deducted from $1,624.95, left a balance in its hands of $1,167.75.

In December, 1899, it made another settlement, in which it was charged with the balance in its hands on the former settlement, and interest thereon, and credited by $94.54, amount paid out on accounts against its ward, and also by $58.56, allowance for "personal services."

In January, 1902, it made another settlement, in which it was charged with the balance in its hands, and interest thereon, and credited by $153.55, amount paid out on account of its ward, and, in addition thereto, by $65.70, compensation for "personal services."

In January, 1904, it made another settlement, in which it was charged with the balance in its hands, and interest thereon, and credited by $195.65 on account of amounts paid out for its ward, and, in addition thereto, by $60.65, "allowance to guardian for personal services rendered."

In 1905 it again settled its accounts, and was charged with the amounts in its hands, and interest thereon, and credited by $114.87, and, in addition thereto, $53.40, "allowance to guardian for personal services rendered."

In 1908 it made another settlement, in which it was charged with the balance in its hands, and interest thereon, and credited by $332.53, paid out on account of its ward, and, in addition thereto, by $67.47 for "personal services."

In March, 1909, it made a final settlement, in which it was charged with the amount in its hands, and interest thereon, and credited by $50.36, amounts paid out on account of its ward, and, in addition thereto, by $5.24 for "personal services." This settlement showed a balance of $613.41 in the hands of the guardian, which sum was paid to the ward.

In this suit the compensation made to the guardian in each settlement, and which in the aggregate amounted to $379.27, was attacked as unreasonable and illegal, and it was sought to recover from the guardian something over $250 on account of these alleged excessive charges. The lower court took the view that the compensation allowed was reasonable and, upon the pleadings, which consisted of the petition and answer, adjudged that the guardian was entitled to the compenation allowed, and dismissed the petition.

It will be observed that all of these settlements were made in the county court and approved by the county judge in the manner provided in sections 1061-1070 of the Kentucky Statutes, and it does not appear that any exceptions were filed to these settlements, or any of them, in the county court. With the record in this condition, there being no evidence either to sustain or refute the reasonableness or illegality of the allowances, the argument is made that they must be presumed to be correct; and therefore the circuit court, in the absence of any evidence to show that they were illegal or unreasonable, properly dismissed the petition.

It is provided in section 1067, in speaking of settlements made by the county judge, that "settlements so made and recorded shall be prima facie evidence between the...