Husmann's Guardianship, In re

• Decision Date: 04 May 1954
• Docket Number: No. 48302,48302
• Citation: 245 Iowa 830,64 N.W.2d 252
• Parties: In re HUSMANN'S GUARDIANSHIP. HUSMANN v. GREENWAY et al.
• Court: Iowa Supreme Court

Page 252

64 N.W.2d 252

245 Iowa 830

In re HUSMANN'S GUARDIANSHIP HUSMANN v. GREENWAY et al.

No. 48302.

Supreme Court of Iowa.

May 4, 1954.

Rhinehart & McLaughlin, Anamosa, and Elliott, Shuttleworth & Ingersoll, Cedar Rapids, for appellant.

Donald J. Dolphin, Manchester, and A. H. Christiansen, Des Moines, for appellee.

THOMPSON, Justice.

On November 24, 1942, the district court of Delaware County appointed the appellant as guardian of the property of her husband, Wilkie J. Husmann, an incompetent. On December 2, 1942, she was authorized to continue the farming business in which her husband had been engaged, and to use funds for the support of the family, by the following order:

'* * * the guardian * * * is therefore authorized to carry on the farming enterprise in the same or similar manner as it has been carried on by the ward and she is further authorized to use the funds of the guardianship to provide necessities for the family of the ward and her use of the funds in providing said necesities shall be limited to providing such necessities only as it has been their custom to have and as are reasonably necessary to provide the necessities of life for herself and family.'

The ward and his family were tenant farmers, and had been engaged in farming for many years past. The family consisted of the husband and wife and ten children, eight of the latter being still at home. The record shows that these eight children lived with the appellant during the entire period of the guardianship, with the exception of one son who was absent for a few months immediately before the termination of the appellant's authority. The seven youngest children ranged in age from 5 to 14 years at the time of appellant's appointment. The children had no property of their own, and appellant in her individual capacity nothing except a one-half interest, amounting to slightly over $1,500, in a real estate note and mortgage, and the household furniture and furnishings.

Appellant did not make annual reports of her doings as guardian. Her first report was filed on December 12, 1945, and was approved by the court, apparently ex parte, on January 2, 1946. She was at the same time allowed fees consisting of certain United States Savings bonds of the value of $356.25.

Her next report was filed on April 29, 1948. This report came to the attention of the district court, sitting in probate, shortly thereafter. It was apparently called to the court's attention by the clerk of the court, acting as referee in probate. The appellant and her counsel were forthwith directed to appear before the court on May 8, 1948. At this time, the court accused appellant of extravagance, entered an order revoking all prior authorizations for expenditures, directed appellant that she should make no further disbursements 'for any purpose whatsoever', and set a further hearing for May 12, next. The court also ordered the transfer of all funds of the guardianship from a bank in Monticello, where appellant had kept her guardian's accounts for the farming operations, and all funds from a bank at Anamosa, where she had deposited moneys received from certain veteran's benefits to which her ward was entitled, to a bank in Manchester.

On May 12th the court repeated the charge of extravagance, called attention to what it deemed certain insufficiencies in the accounting, threatened to remove appellant from her position as guardian, reiterated its order of May 8 forbidding further expenditures, and ordered her to appear on May 19th next to show cause why she should not be removed. The appellant filed certain further reports in an attempt to clarify the matters to which the court called attention. She was severely cross-examined by the court at the various hearings. On May 19th the court entered an order authorizing the appellant to withdraw $150 per month for the support of herself and her family 'after all current expenses and liabilities were paid', appointed a referee to investigate and report on the affairs and accountings of the guardianship, and appointed D. J. Dolphin, who has since appeared as counsel for the successor guardian, as guardian ad litem for the ward. A further hearing was set for July 8, 1948.

On July 8, 1948, objections were filed by the guardian ad litem to the guardian's accountings, and the report of the referee was on file. In substance, it found nothing materially wrong. The appellant appeared, was examined by the guardian ad litem and cross-examined again by the court. At the close of the hearing the court entered its order removing appellant as guardian, appointing George O. Greenway, a stranger to the family relationship and affairs, as successor, and ordering appellant to make over all assets of the guardianship to him forthwith under pain of incarceration in jail. Hearing on the accounting was continued to September 11, 1948, at which time 'such reports and such objections, together with any other reports and objections filed on or before September 1, 1948, shall come on for final hearing and determination.'

On July 22, 1948, the attorneys who had represented the appellant throughout the guardianship and including the various hearings of May 12, May 19, and July 8, filed an application for the allowance of counsel fees in the sum of $150, which application was later denied in toto by the court.

On August 30, 1948, the guardian ad litem filed his amended and substituted objections to the appellant's reports. Under the order of the court made on July 8th, it was upon these the hearing was to be had on September 11th, since they were the only exceptions on file at that time. The matter came on for hearing on September 11th. There was further examination of the appellant by her counsel and by the guardian ad litem. On April 15, 1949, the court entered its order disapproving the appellant's reports and accountings, finding a gross indebtedness to the estate of $7,840.05 (of which only two items, totalling $168.65 were included in the objections filed), and crediting appellant with $2,813.92 as an offset, of which $1,691.75 was an allowance for additional compensation as guardian. This left a net amount for which the guardian was required to account of $5,026.13.

On April 25, 1949, appellant filed her motion to vacate and for new trial, and also a motion to require the court to make its findings more specific on several grounds. While these motions were in terms denied, the court did on May 11, 1950, file its 'Substitute Order Disapproving Report of Bertha Husmann, Guardian, and for Acounting'. This order is in effect almost a total change of ground on the part of the court. It finds appellant indebted to the guardianship estate in the net amount of $6,141.05, but the means of reaching this total, with the exception of two small items, was entirely different from that employed in the order of April 15, 1949. The gross indebtedness found by the court was $6,414.05, with credits allowed of $278. Of the gross sum, $5,614 is reached by determining appellant should be charged with one-half of certain checks issued by her during the period of her guardianship totalling $11,228. She is charged with $431.40 expended by her for life insurance premiums upon the lives of her minor sons; with a claimed loan made to Edward Husmann of $200; with $143.65 as the value of an automobile owned by the ward and traded in by her on the purchase price of a new car bought with her own funds and owned by her; and with $25 paid as the first installment on a house and lot in Manchester intended as a home for the family, the purchase of which the court afterward refused to approve. These last two items are the only ones mentioned in the objections to the reports upon which the court order of July 8 directed the hearing to be had, and they are the only ones which figured in the court's order and judgment of April 15, 1949. It will also be noted the court had changed its mind about allowing appellant compensation for her services. While the order of April 15, 1949, found her entitled to the sum of $1 per day during the period of the guardianship, in the total sum of $2,048, the order of May 11, 1950, held her conduct to be such she was entitled to no compensation except that the previous allowance to her on which there was an unpaid balance of $238 was not disturbed.

Error is predicated by appellant upon three judgments of the court: 1, in finding her indebted to the estate in the sum of $6,141.05; 2, in removing her as guardian; and 3, in refusing to allow the application for her attorneys fees for the period between May 8 and July 8, 1948. We shall discuss these in order. Some further facts not set forth above will be referred to, and some of these will bear upon more than one of the three assigned errors.

I. The general statute governing the powers, duties and responsibilities of guardians is section 668.9, Code of Iowa 1950, I.C.A., which we quote herewith:

'668.9 Duties. Guardians of the property of minors must prosecute and defend for their wards, may employ counsel therefor, lease lands, loan money, and in all other respects manage their affairs, under proper orders of the court or a judge thereof.' Likewise important is section 670.17, Code of Iowa 1950, I.C.A., which we also set out:

'670.17 Allowance to family. The court shall, if necessary, set off to the wife and minor children of the insane person, or to either, sufficient of his property, of such kind as it shall deem appropriate, to support them during the period such person is insane.' With reference to section 668.9, supra, we have said:

'It is our duty by express legislative command to construe this statute liberally 'with a view to promote its objects and assist the parties in obtaining justice.'' In re Guardianship of Brice, 233 Iowa 183, 188, 8 N.W.2d 576, 579.

Certain other well established principles must be kept in mind. They are aptly stated in Des Moines Sav. Bank v. Krell, ...