In re Kenison’s Guardianship, 8904

• Decision Date: 01 March 1948
• Docket Number: 8904
• Citation: 31 N.W.2d 326,72 S.D. 180
• Parties: IN THE MATTER OF THE GUARDIANSHIP OF AUDREY MAY KENISON, An incompetent. Olive Kenison Osborne, Appellant, v. Irving H. Kenison, Respondent.
• Court: South Dakota Supreme Court

72 SD 180, 31 NW2d 326 (1948)

IN THE MATTER OF THE GUARDIANSHIP OF AUDREY MAY KENISON, An incompetent Olive Kenison Osborne, Appellant v Irving H. Kenison, Respondent South Dakota Supreme Court Appeal from Circuit Court, Lincoln County, SD Hon. John T. Medin, Judge #8904—Dismissed Harold Bogue, Canton, SD Attorney for Appellant. Bennett & Anderson, Canton, SD J. H. Lammers, Madison, SD Attorneys for Respondent. Opinion Filed Mar 1, 1948

RUDESILL, Circuit Judge.

The facts in the instant case are relatively simple. On and prior to April, 1944, Audrey May Kenison was the owner of certain property in Lincoln County, South Dakota. Her father William G. Kenison was dead and the executor of his estate was Irving H. Kenison, a brother of her father. Olive Kenison Osborne is a sister of Irving H. Kenison and an aunt of Audrey May.

On April 24, 1944, Bertha F. Kenison, mother of Audrey May, presented a petition for appointment of herself as guardian of Audrey May, alleging that the daughter was incompetent to manage her property and stating that she was the only relative of Audrey May interested on the appointment. The same day the county judge made an order appointing Bertha F. Kenison as guardian of the person and estate of Audrey May and reciting that Audrey May was personally present in court and that she had no relatives interested in the appointment except the mother. The mother failed to qualify as such guardian before her death shortly subsequent to the date of said order.

On August 26, 1944, Irving H. Kenison presented a petition for his appointment as the guardian of the person and estate of Audrey May, reciting her property and alleging that Bertha F. Kenison was appointed guardian but did not qualify; that Audrey May was incompetent and that petitioner was the oldest brother of William G. Kenison, deceased. No recitation was made respecting the whereabouts of Audrey May at that time.

On the same date the Court made its order reciting that Irving H. Kenison was the relative most entitled to receive the appointment and therefore no notice need be given and that the incompetent had appeared before the court before, and that she was incompetent and needed a guardian. Letters were issued after qualification.

While it is not clear from the record it apparently is conceded by both parties that Audrey May was on the 26th of August, 1944, the date of the order last described, in the home for the feeble-minded at Redfield, South Dakota. Irving H. Kenison was acting as guardian when Olive Kenison Osborne on January 18, 1946, filed a petition for an order to show cause. Such petition recited that no notice of hearing was given to any of the heirs at law and next of kin of Audrey May and that no order was made dispensing with such notice. Said petition further alleged that Irving H. Kenison had never made and filed an inventory and appraisement and had made no accounting and that the said Irving H. Kenison intended to operate the farm owned by the incompetent through a son for the farming season of 1946. Petitioner alleged also:

“That this petitioner, as well as the other heirs at law and next of kin of the above named incompetent, object to the guardian so doing and believe that it should be operated by some other than the guardian or any member of his family.”

The prayer thereof was for an order requiring Irving H. Kenison, the guardian of the person and estate of the above named incompetent, to show cause (1) why he should not file an inventory and appraisement; (2) why he should not file an accounting; (3) why he should not be prevented from leasing the real estate either to himself or to any other member of his family; (4) why he should not be removed as guardian for failing to file an inventory and appraisement and to account; (5) why he should not pay expenses for the proceedings.

Order to show cause was issued as requested and was served on Irving H. Kenison. An answer was made by the guardian on January 25, 1946. Hearing was had on the lease matter and the other matters were deferred. On the lease matter the court on February 26th, 1946, approved the lease to the son Robert Kenison ending March 1, 1947. The Court adjourned the other matters to March 14, 1946. On the 26th of March, 1946, the guardian having filed his inventory and appraisement and having accounted, the Court refused to remove the guardian and approved the account. On March 25, 1946, the guardian appealed from...