Guardianship of Ivarsson, In re

• Decision Date: 30 October 1962
• Docket Number: No. 36244,36244
• Citation: 375 P.2d 509,60 Wn.2d 733
• Court: Washington Supreme Court
• Parties: In the Matter of the GUARDIANSHIP OF Victoria IVARSSON, a minor. Mr. and Mrs. E. K. Harrison, Appellants.

Page 733

60 Wn.2d 733

375 P.2d 509

In the Matter of the GUARDIANSHIP OF Victoria IVARSSON, a minor Mr. and Mrs. E. K. Harrison, Appellants.

No. 36244.

Supreme Court of Washington, En Banc.

Oct. 30, 1962.

McMicken, Rupp & Schweppe, Hennings, Maltman & Weber, Seattle, for appellants.

Bogle Bogle & Gates, Stuart G. Oles, Seattle, for respondent.

PER CURIAM.

This is an appeal from certain portions of the 'ORDER ON FIFTH REPORTS OF CO-GUARDIANS' entered

'IN THE MATTER OF THE GUARDIANSHIP OF VICTORIA IVARSSON, A Minor.'

We are concerned with the guardianship of the estate, and not with the guardianship of the person of Victoria Ivarsson (formerly Harrison), now ten years of age, who lives in Zermatt, Switzerland, with her mother and her mother's second husband (who is the ward's adoptive father) and five younger half brothers and half sisters. The mother is co-guardian, with a Seattle bank, of the ward's estate, the corpus of which now exceeds two and a half million dollars. The income was estimated by the trust officer of the bank at $60,000 a year gross, i. e., before taxes. The cash receipts, between February 2, 1959, and January 31, 1960, aggregated $66,872.30; and between February 1, 1960, and January 31, 1961, $73,123.76. This estate comes to the ward by inheritance through her father, who died shortly after she was born.

In addition to the co-guardians, a guardian ad litem has been appointed to continue in that position until the further order of the court.

The appeal, while nominally by the ward's paternal grandmother and her husband, is clearly intended not for their benefit, but for that of the estate of the child.

Many pages in the briefs are devoted to an analysis of cases, statutes, and rules to determine whether the grandmother is an aggrieved or an interested person, and thus entitled to appeal; all of which, it seems to us, misses the most important point.

If there is an aggrieved or interested person entitled to appeal, it is the ward. It is her money that is being so freely and generously distributed. Her right to appeal must be conceded; but inasmuch as she is unable to exercise it, there must be a determination as to who is entitled to appeal in her behalf. The right of appeal by a prochein ami, or 'next friend,' in such circumstances, has long been recognized. Williams v. Cleaveland (1904), 76 Conn. 426, 56 A. 850, and cases cited.

This is, in substance and effect, an appeal by a 'next friend' who conceives that the ward's estate is being wrongfully dissipated and has so indicated to the probate court by chapter and verse. This appeal is properly before us, unless it is precluded by the fact that there are parents who would normally be the 'next friends' of the child; also, co-guardians of the estate of the ward, and, further a continuing guardian ad litem.

The issues raised by this appeal put every one of the parties, who would normally be expected to be protecting the ward's interest in this estate, in an adverse position; the fees to the mother, as co-guardian, to her attorneys, and to the guardian ad litem are challenged, as is an allowance of $750 a month for the support and maintenance of the child (which allowance will be expended for the benefit of the entire family of which she is a part).

It is recognized that a guardian may be disqualified to appeal by an interest hostile to that of the ward, or may, for other reasons, be an improper or unsuitable person to prosecute such an appeal. Williams v. Cleaveland, supra.

The fees for the mother, as one of the co-guardians of the estate, and of her attorneys are specifically under attack by the notice of appeal. Her lack of interest in appealing the order entered by the trial court is patent; and her conflict of interest with that of the estate of her ward is clear. When a probate court is called upon to determine the fees of a guardian and of his attorneys, which are to be paid from the estate of his ward, this obvious conflict of interest has caused probate courts to appoint guardians ad litem to represent minor wards in the hearings on such interim accounts of their guardians, as the one now under consideration. Such an appointment tends likewise to protect the guardian and the attorneys, should the ward--after attaining majority--challenge the value of services rendered or the amount of the fees allowed.

The next question is: Does the appointment of a guardian ad litem, who clearly has a right of appeal ¹, eliminate any necessity for permitting an appeal by a 'next friend.'

The fee allowed the guardian ad litem may, as in this case, be under attack. That a guardian ad litem may make a mistake in judgment Which brings about a situation which should be reviewed by an appellate court, is made clear in the recent case of Haden v. Eaves (1950), 55 N.M. 40, 47, 226 P.2d 457, 462. In that case, it is said:

'* * * we fully approve the doctrine that courts of equity should not sit idly by and see guardians lose the estates of their wards through mistakes in judgment or neglect of their duties. We also approve the rule that a minor who has a case in court is represented not only by his guardian ad litem, but by the court itself. A guardian ad litem is an arm of the court whose function is to protect the ward, and a court must not permit its arm to strangle him.

'Here we have a case where the interests of the minor and his father [who was the guardian ad litem] are separable; both have appealed and we see what we believe to be a serious error made in the case against the interests of the minor. We cannot in good conscience sit with folded hands, adopt the attitude of umpires in a contest between adults, apply our ordinary rules of civil procedure and say that because of a mistake of the guardian ad litem in trying the case on an erroneous theory the minor must lose all. * * *'

We have taken the same attitude, expressed in the foregoing quotation, relative to permitting 'ordinary rules of civil procedure' to block appellate review of matters relating to the rights of minors. See In re Deming (1937), 192 Wash. 190, 200, 73 P.2d 764, 770.

In the Deming case, on an appeal from an order settling the account of successive guardians, there had been no cross-appeal by the guardian ad litem, representing the minors, from a portion of the decree that was adverse to them; and appellants (the guardians and their sureties) asserted that, there being no cross-appeal, no relief could be accorded the minors. We accorded this contention scant consideration, saying:

'* * * This argument is not sound. This court may notice and correct any evident error prejudicial to the minor respondents, even though they have not appealed.

In the case of Glade Coal Mining Co. v. Harris, 65 W.Va. 152, 63 S.E. 873, 877, the Supreme Court of Appeals of West Virginia laid down the rule as follows:

"* * * on appeal an infant will be given the benefit of every defense of which he could have availed himself, or which might have been interposed for him in the trial court, and that where the record shows error, as to a minor defendant, the judgment will be reversed, though there is no appeal on his part, it being the duty of the chancellor, as the guardian of infants, to protect their rights.'

'This doctrine is also supported by the following authorities: Title Guaranty & Surety Co. v. Foster, 84 Okl. 291, 203 P. 231; Kempner v. Dooley, 60 Ark. 526, 31 S.W. 145; Parken v. Safford, 48 Fla. 290, 37 So. 567.'

If some phase of a guardianship proceeding is before an appellate court, it will act sua sponte to protect the apparent interests of the ward or wards; and it will not dismiss a meritorious appeal by a 'next friend' in such a proceeding merely because a guardian ad litem has been appointed. To quote again the language of the New Mexico court in Haden v. Eaves, supra, we are not inclined to 'adopt the attitude of umpires in a contest between adults' and to 'apply our ordinary rules of civil procedure' to prevent meritorious appeals involving the rights and property of minors and incompetents.

It is urged that appeals by 'next friends,' in such cases, could flood the court with frivolous appeals by litigious individuals, designed, in some instances to harass and embarrass the administration of estates. We have no such fears. Not only are there substantial expenses involved in any appeal, but there is the quicksifting process by a motion to dismiss a frivolous appeal. Nor are we without means to prevent the abuse of the appellate process. We are satisfied that this appeal presents issues which should be determined.

The motion to dismiss the appeal is denied.

The 'next-friend' appellants challenge, on this appeal, three specific payments authorized by the probate court, i. e., the coguardian's fee of $3,500 for services between February 1, 1960, and January 31, 1961; her attorneys' fee in the amount of $2,520 for the same period; and the guardian ad litem's fee of $1,500 and expenses in the amount of $151.99 for the same period. Also challenged is the ruling of the probate court that no receipts or accounting are required covering the expenditures of the $750-monthly allowance for the support of the ward, and that such amount is an appropriate allowance under the circumstances.

We agree with the appellants that the fee of $3,500 to the mother of the ward, for services as co-guardian of the ward's estate, is not warranted. The guardian ad litem referred to the fee, in argument before this court, as 'pointless'; and the probate judge, as shown by the record, has heretofore indicated that her services in managing or preserving the estate are valueless. Nor is she entitled to compensation as guardian of the person of her daughter, as there is no reason why she should be compensated for doing what any mother does. A nominal fee would seem to be adequate for the minimal duties entailed as a co-guardian of her daughter's estate, since the other co-guardian ...