In re Guardianship of Person and Estate of Harris

• Decision Date: 14 May 1914
• Docket Number: Civil 1365
• Citation: 140 P. 825,16 Ariz. 1
• Parties: In the Matter of the Guardianship of the Person and Estate of EMMA J. HARRIS, a Minor. EMMA J. HARRIS, by Her Guardian Ad Litem, Appellant, v. WILLIAM H. LYON, Guardian, Appellee
• Court: Arizona Supreme Court

140 P. 825

16 Ariz. 1

In the Matter of the Guardianship of the Person and Estate of EMMA J. HARRIS, a Minor. EMMA J. HARRIS, by Her Guardian Ad Litem, Appellant, v. WILLIAM H. LYON, Guardian, Appellee

Civil No. 1365

Supreme Court of Arizona

May 14, 1914

APPEAL from a judgment of the Superior Court of the County of Yuma. Frank Baxter, Judge. Reversed with directions.

The facts are stated in the opinion.

Mrs Mary A. Wupperman, for Appellant.

Mr Thos. D. Molloy, for Appellee.

OPINION

ROSS, J.

Appeal from an order of allowance and settlement of guardian's account and from an order authorizing and directing the guardian to sell real estate of the ward. In 1906 the appellee married May Harris, the mother of Emma J. Harris who was then about ten years old. The mother, May Harris Lyon, died June or July 17, 1907, leaving no estate. From that time on Emma Harris lived with her grandmother, Mrs. Lena White, who was the mother of May Harris Lyon. The appellee, stepfather to Emma, was a party to an arrangement that she should live with her grandmother, he to furnish her housing, clothing, food and medical attention and generally to provide for them. While perhaps there was no definite agreement in terms to such an arrangement, the subsequent conduct was along those lines. The appellee made provision for the grandmother and minor in this manner from June 17, 1907, until March 11, 1912, simply as the stepfather to Emma. On the last-mentioned date he secured letters of guardianship of both the person and estate of the minor, but continued the arrangements, with slight interruptions, as to her care and keep as before. The estate of which he was appointed guardian consists of one hundred and sixty Acres of land in Yuma county, filed upon by May Harris under the federal homestead law October 28, 1903, before the marriage to appellee. After the death of entrywoman, appellee continued to improve and cultivate the land to comply with the homestead act, and in course of time made final proof. The final receipt was issued by the government March 10, 1913, and in June, 1913, a patent was issued to the heirs of entrywoman. The appellee prefaced his account against the minor, Emma Harris, as follows: "That since the death of the mother of said minor, May Lyons, on June 17, 1907, affiant has, out of his own funds, cared for and maintained said minor, she not having any estate or income whatsoever, except her prospective interest in said land (homestead) which until this time has always been uncertain, remote and practically valueless. That in such care and maintenance affiant has expended the following sums." The statement shows an expenditure from June 17, 1907, to April 1, 1913, for care and maintenance of $5,300, and moneys paid out improving and cultivating homestead, final proof, fees, commissions and attorney's fees, court costs, in the sum of $680, two-thirds of which is charged to minor, and $20 paid clerk of court, making $473.33, or all told $5773.33. This account of appellee was contested by the guardian ad litem as being: (1) Excessive and fraudulent; (2) on the ground that all advances for the care and maintenance of Emma were made by the appellee voluntarily; and (3) that appellee was the stepfather of Emma, and as such exercised all the rights of a natural parent, and thereby assumed all the duties and obligations of a natural parent; (4) that the account of guardian was barred by the three-year statute of limitation; and (5) that all items charged against the minor before letters of guardianship were issued should be disallowed for the reason that the minor is not liable for any expenditures made by her stepfather prior to his appointment as guardian. The court overruled the legal questions raised by guardian ad litem, heard evidence in support of and against the account, and rendered judgment allowing the account of appellee for care and maintenance in the sum of $2,780, or $40 per month from June 17, 1907, to April 1, 1913, and for improving and preserving the homestead the sum of $585, or a total sum of $3,365. Both parties appeal from this judgment, appellee contending that allowance is too small, and appellant that it was far too much.

The law imposes upon the parent the duty of caring for his child during the period of its inability to care for itself, and only in exceptional cases may he use the estate of the latter for that purpose. In this case the minor, Emma Harris, after her mother's death, was left without parents and without any available or tangible estate. She was but ten years old and of delicate constitution. The appellee, either because of his being the husband of her mother and therefore the child's stepfather, or out of sympathy for her in her helpless condition, or both, without any legal obligation to do so, undertook to care for her out of his own means. Without letters of guardianship, he provided for her and her grandmother, furnishing them the ordinary and necessary comforts of life from June 17, 1907, until March 11, 1912.

While appellee was under no natural, and therefore no legal, obligation to care for the minor child, the assumption of that duty by him carried with it legal responsibilities.

As is said in the note to National Valley Bank v. Hancock, 57 L.R.A. 729 (100 Va. 101, 93 Am. St. Rep. 933, 40 S.E. 611): "The universal rule is that a stepfather, as such, is not under obligation to support the children of his wife by a former husband, but that, if he takes the children into his family or under his care in such a way that he places himself in loco parentis, he assumes an obligation to support them, and acquires a correlative right to their services."

In Sharp v. Cropsey, 11 Barb. (N.Y.) 224, it is said: "The stepfather is not bound to support his stepchildren, nor the latter to render him any services; but if he maintains them, or they labor for him, they will be deemed to have dealt with each other in the character of parent and child, and not as strangers, without obligation on the part of the father to pay for his children's services, or on the part of the children to remunerate their father for their support." See National Valley Bank v. Hancock, supra, and Bartley v. Richtmyer, 53 Am. Dec. 338 (4 N.Y. 38), for collection of cases on this point.

The record shows that the appellee claimed the right to the custody of Emma from the time of her mother's death, and that he first placed her with one of his own blood relatives; that she was left with her grandmother in obedience to a request of his wife before her death; that the grandmother's position was that of housekeeper, largely subject to the orders and directions of the appellee; that he furnished the house for them to live in, much of the time retaining a room for his personal use; that he exercised the parental rights of controlling and supervising the conduct, education and employment of Emma, and at one time corporally chastised her for disobedience. Practically the only surrender made by appellee was in the matter of Emma's religious training, in which he deferred to the expressed wishes of his deceased wife and the wishes of the grandmother. The rights, powers and duties claimed and exercised by him over the child were such as only a parent could lawfully claim and exercise. Indeed, in his petition to the court for authority to sell the homestead, dated and sworn to by appellee March 12, 1913, he describes Emma as follows: "That said minor is the only daughter of one May Lyon, now deceased, and the stepdaughter of her guardian, William H. Lyon," The law will not permit a parent or one in loco parentis, years after he has made advances to the child for its support, to recover his expenditures as upon an implied contract. Here the duty was voluntarily assumed, and voluntarily the obligation was discharged. Moreover, it fairly appears that appellee never expected to be remunerated when he first took charge of the child and for quite a while thereafter, for in his first account against his ward, dated March 17, 1913, he states that he "has, out of his own funds, cared for and maintained said minor, she not having any estate or income whatsoever, except her prospective interest in land, which until this time has always been uncertain, remote, and practically valueless." Indeed, the thought of repayment of his outlays for the child seems to have germinated coincidently with or shortly before she secured title to the homestead, theretofore considered "uncertain, remote and practically valueless," but, as shown by the inventory and appraisement, of the real value of $85 per acre.

That the appellee kept no books of account between himself and the child and had no record of the items, nor the dates when furnished, and in making up his account was compelled to resort to the memory and books of the various tradespeople with whom he had had accounts, are strong circumstances indicating an absence of intention at the time to ask for reimbursement. That for a long time he expected no remuneration is shown by his own testimony in which he said:

"A. When Emma's mother first died there wasn't any property except that piece of land on the Mesa, and I didn't think it was worth anything at all, and lots of times I called in Ap John and didn't think about getting a receipt. I paid him and kept no record of it. I paid very little attention to it because I didn't think there was anything in the Mesa land.

"Q. When did you first have any assurance you would get anything out of the Mesa land?

"A. I first began to believe that the property might be of value in 1909 or 1910.

"Q. As to getting the title, when did you begin to have hopes of getting title to it?

"A. About a year ago."

The intention or purpose to require repayment is...