In re Guardianship of Brady

• Decision Date: 09 December 1904
• Citation: 10 Idaho 366,79 P. 75
• Parties: IN RE GUARDIANSHIP OF ARVA AND ELMER BRADY, INFANT CHILDREN OF JOHN C. BRADY, DECEASED
• Court: Idaho Supreme Court

79 P. 75

10 Idaho 366

IN RE GUARDIANSHIP OF ARVA AND ELMER BRADY, INFANT CHILDREN OF JOHN C. BRADY, DECEASED

Supreme Court of Idaho

December 9, 1904

GENERAL GUARDIAN-POWERS AND AUTHORITY TO INCUR EXPENSE IN LITIGATION OVER PROBATE OF WILL-JURISDICTION OF PROBATE COURT PLENARY WHEN ONCE ACQUIRED.

1. The probate courts of this state have jurisdiction to appoint a guardian for minors domiciled in the state, and after having made such appointment the courts retain jurisdiction for all purposes in connection therewith until the guardian's accounts are rendered and he is legally discharged.

2. Where a testamentary guardian for minor children is named by the last will and testament of a decedent, and there is reasonable ground to believe that the will is valid and legal, a general guardian of the minors is justified in incurring the expenses necessary in resisting a contest of such will, even though he should fail to establish its validity.

3. In a petition for the settlement and allowance of a guardian's account, it is not necessary to allege the steps taken in procuring his appointment, since probate courts are, in such matters, courts of general jurisdiction, and every intendment is in favor of the regularity of their judgments and orders. (Clark v. Rossier, ante, p. 348, 78 P. 358, approved and followed.)

(Syllabus by the court.)

APPEAL from District Court in and for Kootenai County. Honorable Ralph T. Morgan, Judge.

A petition was filed in the probate court of Kootenai county by Thomas J. Purcell for the allowance to him, as general guardian, out of the estate of Arva and Elmer Brady, minors his costs and expenses incurred in conducting litigation over the probate of the will of their deceased father. A demurrer was sustained to the petition in the probate court and the petitioner appealed. The district court affirmed the judgment of the probate court, and from such judgment the petitioner appealed to this court. Reversed.

Reversed and remanded, with direction. Costs of this appeal awarded to appellant.

Cyrus Happy, for Appellant.

The petition having alleged the appointment of appellant as guardian, and the demurrer having admitted all the facts stated in the petition, appellant contends that it will be presumed the probate court, in making the appointment alleged to have been made, had jurisdiction and authority to make the appointment, and that the order for judgment of the probate court cannot be successfully assailed in this collateral way. Section 3842 of the Revised Statutes of 1887 provides as follows: "The proceedings of this court (probate) are construed in the same manner, and with like intendments, as the proceedings of courts of general jurisdiction, and to its records, orders, judgments and decrees there is accorded like force, effect and legal presumption as to the records orders, judgments and decrees of the district courts. Provided, that this section shall be applicable to its probate proceedings, records, orders, judgments and decrees only." (Ollis v. Orr, 6 Idaho 474, 56 P. 162; Van Fleet's Collateral Attack, secs. 1, 841; Woerner's American Law of Guardianship, sec. 135; Castetter v. State, 112 Ind. 445, 448, 14 N.E. 388; Kelley v. Morrell, 29 F. 736; People v. Wilcox, 22 Barb. 178, 186; Glendenning v. McNutt, 1 Idaho 592.) As general guardian it was the duty of appellant to attend to the interests of his wards in any proceedings in court concerning the estate of their father in which they were interested. (Rev. Stats. 1887, sec. 5673.) This is specifically required in contests of wills. (Rev. Stats. 1887, sec. 5669; Woerner's American Law of Guardianship, p. 190.) This guardian acted in conformity with these requirements of the law. In the probate, district and this court he appeared as the guardian of these wards, and in no other capacity. Moreover, he was recognized in all those courts in the several trials had concerning this contest of the proposed will as the general guardian of the children. ( Pine v. Callahan, 8 Idaho 684, 71 P. 474.) It being the duty imposed by statute upon the guardian of these children to represent them in the proceedings instituted to contest their father's will, and in carrying out those duties, having incurred these costs, is he not entitled to be reimbursed at least to the amount thus paid out and incurred by him? (Stats. 1887, sec. 5796; Woerner's American Law of Guardianship, pp. 105, 194.) The guardian is entitled to be reimbursed for costs and counsel fees paid by him for professional advice, and for prosecuting and defending suits in the ward's interest necessary in the legitimate business of the ward's estate. (Mathes v. Bennett, 21 N.H. 204; Holcomb v. Holcomb, 13 N.J. Eq. 415; Alexander v. Alexander, 8 Ala. 796; Curren v. Abbott, 141 Ind. 492, 50 Am. St. Rep. 337, 40 N.E. 1090.) In conclusion, we respectfully claim that Father Purcell was duly appointed guardian of these minor children by the probate court of Kootenai county, and that said court at the time had jurisdiction of the parties and the subject matter. In any event, the question of jurisdiction and the regularity of the appointment cannot be raised by a demurrer in this case--that as such guardian it was his imperative duty to represent his wards. That he did so represent them in the will contest in which they were interested. That he was recognized as such guardian in all the courts through which the litigation was carried. That in performing this duty, the items embraced in his account, attached to his petition, were contracted and expended. It is too plain for citation of authorities that this is in the nature of a collateral attack, if it is anything, upon the judgment or order of the probate court which appointed appellant general guardian of these wards. (Peyton v. Peyton, 28 Wash. 278, 68 P. 757; Kalb v. German Sav. etc. Soc., 25 Wash. 351, 87 Am. St. Rep. 757, 65 P. 559.)

John B. Goode, for Respondent.

It is an admitted fact in this case that the infants who are entitled to receive the benefits of the insurance certificates and policies of insurance mentioned in the petition are domiciled in the county of Keokuk, in the state of Iowa, and have been so domiciled since the death of their last surviving parent, John C. Brady. It is also an admitted fact that a guardian has been appointed for the persons and estates of said infants by the district court of Keokuk county, Iowa, a court of probate jurisdiction, and that said guardian has duly qualified as such. The only question presented by the petition is, "Can the probate court of Kootenai county withhold from such guardian these certificates and policies of insurance until the claims set out in the petition are liquidated?" Or, "Can the amount of said claims be made a charge against said policies and certificates?" Such is the prayer of the petitioner, and we contend that the probate court of Kootenai county has not jurisdiction to either withhold the policies or make any order which would create a lien upon the proceeds. The minors in this case after the death of their parents took up their residence with their maternal relatives in the state of Iowa, and acquired their domicile. (See In re Benton, 92 Iowa 202, 54 Am. St. Rep. 546, 60 N.W. 614; Lamar v. Micou, 114 U.S. 218, 5 S.Ct. 857, 29 L.Ed. 94.) The preference due to the law of the ward's domicile, and the importance of a uniform administration of his whole estate, require that, as a general rule, the management and investment of his property should be governed by the law of the state of his domicile, especially when he actually resides there, rather than by the law of any state in which a guardian may have been appointed or may have received some property of the ward. (Lemar v. Micou, 112 U.S. 452, 5 S.Ct. 221, 28 L.Ed. 751.) The judgment of the court of superior jurisdiction may be collaterally attacked upon the ground that the court by which it was rendered had no jurisdiction, either of the subject matter or of the person of the defendant or both. (Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec. 742; Palmer v. Oakley, 2 Doug. (Mich.) 433, 47 Am. Dec. 41; Woerner's American Law of Guardianship, 111.)

AILSHIE, J. Sullivan, C. J., and Stockslager, J., concur.

OPINION

The facts are stated in the opinion.

AILSHIE, J.--

This case arose out of the facts and transactions disclosed in the case of Pine v. Callahan, 8 Idaho 684, 71 P. 473. The appellant, Thomas J. Purcell, having been named by the purported will of John C. Brady, deceased, as the testamentary guardian of the minors, Arva and Elmer Brady applied to the probate court of Kootenai county, and was on the twentieth day of July, 1901, appointed as general guardian of the persons and estates of the said minors. At the time of the death of John C. Brady, these two minor children were living and residing with their father in Kootenai county. Their mother had died some two years previous. The domicile of the minors was not changed after the death of their father, and still continued to be in Kootenai county at the time of the appointment of the appellant as general guardian. On the twenty-ninth day of July, 1901, it seems that Frank Pine, a resident of the state of Iowa, who is named in this proceeding as the guardian of the minors, was appointed by the district court of Keokuk county, Iowa, as guardian of the persons and property of the minors, Arva and Elmer Brady. It appears that some time between the twentieth and twenty-ninth days of July, 1901 the Iowa guardian, Frank Pine, who is a maternal uncle of the minors, in some surreptitious way, or at least not by an order of any Idaho court, removed the children from this state and took them to the state of Iowa. It is clear that Pine was neither the natural nor testamentary guardian...