In re Barker
| Decision Date | 10 April 1917 |
| Citation | 164 P. 382,83 Or. 702 |
| Parties | IN RE BARKER. |
| Court | Oregon Supreme Court |
Department 1.
Appeal from Circuit Court, Multnomah County; C. U. Gantenbein Judge.
In the matter of the claim of Wascher Bros. against the estate of W C. Barker, a spendthrift. From a decree of the circuit court on appeal reversing an order of the county court rejecting the claim, the guardian appeals. Affirmed.
It appears by the record that the county court of Multnomah county appointed a guardian for William C. Barker, having adjudged him to be a spendthrift. The petitioners, doing business as grocers under the firm name of Wascher Bros presented a petition to the county court in which they averred:
"That between the 28th day of November, 1914, and the 20th day of September, 1915, said W. C. Barker did purchase of and from the petitioner herein and his brother, F. W. Wascher copartners, doing business as Wascher Bros., goods, wares and merchandise of the agreed price and reasonable value of $473.90, and paid on account thereof the sum of $321.25, leaving a balance due of $152.35; that said goods, wares, and merchandise were family necessities and were used by the defendant in and about the maintenance of his home."
They further stated that they had presented their claim to the guardian, who refused it on the ground that his ward was a spendthrift without capacity to contract any obligation whatsoever. They alleged in effect that the groceries furnished were necessaries required for the ward's sustenance, and that he is possessed of considerable estate with an income in excess of $350 per month. They prayed for an order of the county court compelling the guardian to pay the alleged indebtedness. The court, however, denied the petition. On an appeal to the circuit court that tribunal heard the agreed statement of facts and additional testimony, made findings of fact to the effect that the goods furnished were necessaries, gave the petitioners a judgment against the ward for the balance of account amounting to $152.71, and as a further conclusion of law held "that the plaintiff do have execution on demand." The judgment in fact entered was substantially that the plaintiffs have and recover from the defendant Barker the sum of $152.71, together with costs and disbursements herein without ordering execution. It is stated in the abstract that subsequently the petitioners issued execution on the judgment and placed it in the hands of the sheriff of Multnomah county; that an appeal was taken and a supersedeas bond filed; that afterwards the petitioners filed their undertaking notwithstanding the appeal and proceeded with the execution; and that the sheriff made a return showing that he had realized the full amount of the judgment by the sale of an automobile belonging to the ward. There is no official record before us, however, disclosing anything about the proceedings after judgment. An appeal has been taken on behalf of the estate of the spendthrift.
Lynn B. Coovert, of Portland (E. E. Coo vert, of Portland, on the brief), for appellant. Elmon A. Geneste, of Portland (Clark & Geneste, of Portland, on the brief), for respondent.
BURNETT, J. (after stating the facts as above).
Referring to the guardianship of a spendthrift, it is said in section 1324, L. O. L.:
"If a guardian shall be appointed on such application, all contracts, excepting for necessaries, and all gifts, sales, or transfer of real or personal estate made by such spendthrift, after such filing of the complaint in the county clerk's office, and before the termination of the guardianship, shall be null and void."
In section 1326, L. O. L., it is provided thus:
Under the assignments of error it is contended that the articles furnished Barker were not necessaries, and that the claim for the same was not valid, as against the estate of the spendthrift. The circuit court found that the goods were received and used by Barker in and about the maintenance of his home, and that they were family necessities. The agreed statement of facts and the testimony received in addition thereto convinces us that this finding was justified.
There seems to be but little contest over the fact that the goods were groceries, consisting of articles of food used by the spendthrift. The contention against the decree is that the guardian had placed in the hands of his ward each month ample funds with which he could have supplied himself with what was requisite for his sustenance, and hence that the food which the petitioners furnished him and which he actually consumed, but did not pay for in full, were not necessaries. Some old precedents from other states have been cited which apparently support that argument, but they do not seem to be applicable to our statute. Section 1326, L. O. L confers upon the guardian the management of all his ward's estate, and the following section directs him to pay all just debts due from his ward. To deliver into the latter's hands, therefore, the funds of his estate is at war with the general scheme of guardianship. If the guardian is to manage all the ward's property, as the statute says he must, it is a violation of his duty to commit the control of any considerable portion of it to the spendthrift himself. In good reason he that hath discretion to manage his own property hath no need of a guardian. The very cause for appointing a custodian for the estate of a profligate person is that he is dissipating it, and that therefore it is necessary to take from him all authority over it. It seems from the record that, instead of applying to his actual necessities the allowance given to him by his guardian, Barker took counsel of his propensities rather than of good judgment and squandered the money, failing to pay in full for the necessaries which the petitioners furnished him. Although he may have wasted his allowance in riotous living, still it was imperative for him to live, and, under section 1326, supra, he was entitled to...
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Olshen v. Kaufman
...as contracts for necessaries are concerned, and is unable otherwise to deal with any part of his estate.' 130 Mass. at 459. In re Barker, 83 Or. 702, 164 P. 382, is relied on by the plaintiff. In this case recovery was allowed for the agreed price and reasonable value of necessaries sold by......
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...Court in effect concluded that execution proceedings were part of the action in which the judgment was entered. See In re Barker, 83 Or. 702, 710, 164 P. 382 (1917) ("[T]he clerk is required to issue the writ and direct it to the sheriff. Hence it is not a judicial function in any sense of ......
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