Guardianship of Whitish, In re

• Decision Date: 03 November 1955
• Docket Number: No. 33212,33212
• Citation: 47 Wn.2d 652,289 P.2d 340
• Court: Washington Supreme Court
• Parties: Guardianship of Betty WHITISH, Verna Whitish, Marjorie Whitish, Edward Whitish, Shirley Whitish, Alvin Whitish and Sharon Whitish, Minors.

Page 652

47 Wn.2d 652

289 P.2d 340

Guardianship of Betty WHITISH, Verna Whitish, Marjorie

Whitish, Edward Whitish, Shirley Whitish, Alvin

Whitish and Sharon Whitish, Minors.

No. 33212.

Supreme Court of Washington, Department 1.

Nov. 3, 1955.

Rehearing Denied Dec. 9, 1955.

W. B. Magee, Everett O. Butts, Chalmers Walters, Seattle, for appellant.

Gavin, Robinson & Kendrick, Yakima, for respondent.

WEAVER, Justice.

This action was commenced by seven minors, appearing by their guardian ad litem, to remove the guardian of their estates and to vacate an order authorizing their guardian to settle damage claims, execute releases, and disburse the proceeds of the settlement.

The show cause order was directed to Vera Whitish, the mother of the minors and the guardian of their estates, with directions to serve a copy of the motion and affidavit of the guardian ad litem upon the Richfield Oil Company, 'which said Company may respond herein as its interest may appear.'

The mother did not appear in the present action. The oil company appeared by counsel and contested the motion of the guardian ad litem. The trial court denied the motion and the guardian ad litem appeals.

Did the court have jurisdiction to enter the order authorizing settlement of claims, which order was entered October 13, 1950? Specifically, was Vera Whitish the duly appointed and qualified guardian of the estates of the minors on that date? If she were not such guardian, then the trial court was without jurisdiction to enter the order authorizing her to settle the claims of the minors, and the order is a nullity.

The petition for the appointment of guardian, verified and filed October 13, 1950, by the mother of the minors, alleges that they

'* * * are the owners of claims against the Richfield Oil Company and Eugene White, arising out of personal injuries and pain and suffering and other items of damage therefrom sustained by said minors on March 5, 1950, by reason of their being struck by a truck owned by the Richfield Oil Company and being driven by its employee, Eugene White. * * *'

The petition for appointment of guardian continued:

'That there are no assets in the estates of said minors other than the aforementioned claims, and that after settlement is made with regard to said claims and all creditors paid and after other orders with regard to the disposition thereof, the remaining guardianship estate will not exceed the sum of $500.00. That under and by virtue of those circumstances no bond should be required of your petitioner in event she is appointed guardian herein.' (Italics ours.)

Thereupon, an order appointing guardian was entered; Vera Whitish filed her oath; and letters of guardianship were issued October 13, 1950. The order recited:

'That after the payment of the sums due all creditors rendering services by reason of the injuries to said minors, and other amounts required for their immediate support, the estates of said minors do and will not, in any event, exceed the sum of $500.00. That no creditors' rights are being prejudiced by the appointment of a guardian without bond, and that no bond should be required of the said petitioner Vera Whitish as guardian of the estates of said minors.' (Italics ours.)

On the same day, October 13, 1950, Vera Whitish, as 'guardian of the estates of the above named minors,' verified and filed a petition for authority to settle damage claims, execute releases, and disburse funds. In brief, the petition alleged the appointment of Vera Whitish as guardian, the details of the accident in which the minors were injured the alleged extent of the injuries suffered by each, the present extent of recovery, the incurment of $1,205 doctor bills and $1,868.50 hospital bills on behalf of the minors. The petition also alleged that Harry and Hermie Whitish (parents of Vera Whitish, guardian) had incurred expenses of $500, on behalf of the minors; that $463.25 was a reasonable attorney fee to be allowed counsel for the guardian; and that since March 5, 1950 (the date of the accident), the guardian had 'required the sum of at least $25.00 per month for each of said [seven] children and that she should be reimbursed. * * *'

The petition to settle claims continued:

'That without admitting any liability, said Richfield Oil Company, a corporation, and Eugene White have offered the sum of $5,500.00 in full and complete settlement of any and all claims against them by reason of the occurrences and injuries involving the above named minors in the accident aforesaid, including all claims of Harry Whitish and Hermie Whitish against the estate of said minors or against your petitioner individually.'

In accordance with the petition, the trial court authorized the guardian to settle the minor's claims against the Richfield Oil Company for $5,500. The money was immediately ordered disbursed as follows: $3,073.50 to the doctors and hospital; $500 to Harry and Hermie Whitish; $463.25 to the guardian's counsel; and $1,463.25 to the guardian 'individually for the care, support and education of said minor children.'

RCW 11.88.100 provides, in part, as follows:

'Before letters of guardianship are issued, each guardian shall take and subscribe an oath and file a bond, with sureties to be approved by the court, payable to the state, in such sum as the court may fix * * *.

* * *

* * *

'When it appears from the petition for letters of guardianship and from the evidence submitted at the hearing thereon that the value of the estate does not exceed five hundred dollars, that the rights of the ward and creditors will not be jeopardized thereby, and that the guardian is a parent of, or a person standing in loco parentis to, the ward, the court may order that letters of guardianship be issued without bond.'

The wording of the first paragraph of the statute, quoted next above, was adopted in 1917. Laws of 1917, chapter 156, § 203. The second paragraph first appeared in 1947. Laws of 1947, chapter 145, § 1. Both paragraphs were re-enacted in 1951 Laws of 1951, chapter 242, § 1.

We reject, as specious, the argument that the children had no estate at the time the guardian was appointed. It is apparent that a value of $5,500 had already been placed upon their aggregate claims. We cannot ignore our knowledge of the practice of presenting both petitions to the court at the same time, a conclusion buttressed by the fact that all documents are verified and filed on the same day. True, correct procedure requires that they be presented in proper consecutive order, but it would be pure...