In re Clark's Guardianship

• Decision Date: 14 October 1924
• Docket Number: 14094.
• Parties: In re CLARK'S GUARDIANSHIP.
• Court: Oklahoma Supreme Court

230 P. 891

104 Okla. 245, 107 Okla. 6113, 43 A.L.R. 595, 1924 OK 913

In re CLARK'S GUARDIANSHIP.

No. 14094.

Supreme Court of Oklahoma

October 14, 1924

Rehearing Denied. Dec. 2, 1924.

Syllabus by the Court.

A guardian, who permits a third person to take charge of a trust fund belonging to his ward, and to deposit such fund in a bank otherwise than in the name of the trust estate, and without anything to indicate that the deposit was made in his representative capacity as trustee, is liable to his ward for the loss of the fund through a failure of the bank without regard to the good faith or intention of the guardian in making the deposit.

Where a mother who had been appointed guardian of her minor son had made no charge against him for money expended for his support and maintenance, and obtained no authority from the county court to expend moneys belonging to such child for his support, no credit can be allowed therefor, after her removal as guardian, at the instance of a surety upon her bond as guardian, upon exceptions filed by such surety to her final report.

Commissioners' Opinion, Division No. 5.

Appeal from District Court, Cherokee County; J. H. Jarman, Judge.

In the matter of the guardianship of Levi Scott Clark, a minor. Action by the New Amsterdam Casualty Company against the estate of Levi Scott Clark, a minor. From a judgment for defendant, plaintiff appeals. Affirmed.

Kent V Gay, of McAlester, for appellant.

Bruce L. Keenan, of Tahlequah, for appellee.

FOSTER C.

This controversy grows out of exceptions to the final report of Mary A. Clark, as guardian of Levi Scott Clark, a minor filed by the New Amsterdam Casualty Company, a corporation as surety upon an additional bond executed by such guardian in connection with the sale of certain real estate belonging to the minor. The county court of Cherokee county, Okl charged the guardian with the sum of $1,600, representing the proceeds from the sale of certain real estate belonging to the minor which had been lost through the failure of the Central National Bank of Tahlequah, in which bank the funds had been deposited by J. D. Cox, county judge of Cherokee county; credited the guardian with certain amounts, and found that said guardian and her surety were due to account to the minor for a balance of $1,128.30.

An appeal was prosecuted by the surety to the district court of Cherokee county, Okl., wherein the court upon a trial to the court on the 11th day of September, 1922, entered judgment, charging the guardian and her surety with the said sum of $1,600, representing the proceeds from the sale of the real estate mentioned; refused the guardian credit for a certain sum which it was claimed had been expended by the guardian for the support and maintenance of said minor during her tenure of office as guardian, and ordered the guardian and her surety, New Amsterdam Casualty Company, to account and pay D. O. Scott, guardian, as the lawful successor of Mary A. Clark, the sum of $1,087.76.

At the request of the surety the trial court made certain findings of fact and conclusions of law, the material parts of which are as follows:

"Findings of Fact.

* * * That after that proceeding (referring to the probate sale) was had and a guardian's deed executed from the guardian to the purchaser, and as a part of the same transaction in which the guardian's deed was executed, the purchaser, together with the guardian, appeared in the office of the county judge of Cherokee county to close the proceedings, and the purchaser, in the presence of and with the knowledge of the guardian, paid into court, by check, the sum of $1,600. That guardian's deed was delivered to the purchaser. That such payment by the purchaser was in effect a payment of the purchase price to the guardian. This is now an action between the minor or rather a settlement of the account, between the minor and the guardian. The guardian did not take possession of or obtain control of this $1,600, but permitted the same to be taken charge of and under the control of the county judge, who from the evidence here deposited this amount in the Central National Bank of Tahlequah, Okl., to his account, as county judge. That these funds, at no time, were deposited in the name of the guardian, or of the ward. * * * That with regard to the claim for board, or for the maintenance and support of this minor, the court finds that this minor, together with the guardian, his mother, and other members of the family, resided upon a farm, and that no expenditures were made, or included, by this guardian, for the maintenance and support of this minor, except such as were taken care of and paid by the efforts of this minor, together with the efforts of other members of the family, in the growing of farm products which were sold to take care of the family expenses, and that such charges were-would not be a legal charge, and the guardian is not entitled to credit for maintenance and support of this minor.

Conclusions of Law.

As a conclusion of law the court finds and holds that, when this sum of $1,600 was paid in court under the sanction and approval of the guardian, it was then the duty of the guardian, under her oath as guardian, and in the discharge of the legal duties due this ward, to whom only the minor could look for protection, to have taken charge of this fund and to have safeguarded it in the manner as the law contemplates, and as her duty required her to do; and, by her failure to take charge of the funds, was such negligence on her part as to render her and hold her accountable to this minor for this sum, which is the proceeds of the sale of the land in question. * * *"

Motion for a new trial was filed and overruled, and the New Amsterdam Casualty Company brings the cause regularly on appeal to this court on petition in error and case-made.

Appellant discusses its assignments of error under two propositions as follows:

First. That Mary A. Clark, guardian, is not properly chargeable with the sum of $1,600 derived from sale of real estate belonging to Levi Scott Clark, a minor, for the reason that she exercised the care and diligence in the preservation of such fund which would have been exercised by an ordinary prudent business man, and that the loss of said sum was not occasioned by any fault, neglect, or...