In re Miller's Guardianship
| Decision Date | 10 October 1946 |
| Docket Number | 30035. |
| Citation | 173 P.2d 538,26 Wn.2d 202 |
| Court | Washington Supreme Court |
| Parties | In re MILLER'S GUARDIANSHIP. |
Department 1
Proceeding in the matter of the guardianship of Kathleen S. Miller incompetent, on the petition of Robert B. Miller, the former husband of incompetent, for citation directing the National Bank of Commerce of Seattle, guardian, to show cause why payments from sale of certain real estate should not be set over to petitioner and that guardian should have no further right, title or interest in and to such payments. From a decree for petitioner, guardian appeals.
Reversed with directions.
Appeal from Superior Court, Kitsap County; H. G. Sutton, judge.
Marion Garland, Sr., and Marion Garland, Jr., both of Bremerton, and Frank Hunter, of Seattle, for appellant.
Merrill Wallace, of Bremerton, for respondent.
This is an appeal by the National Bank of Commerce of Seattle, as guardian of an incompetent's estate, from a decree holding that the incompetent had no right, title, or interest in certain real property involved in a prior divorce action. In order to assist in an understanding of the situation, we set out the steps leading up to this appeal in chronological order:
December 10, 1943. Robert B. Miller filed a complaint for a divorce against Kathleen S. Miller, his wife, alleging mental cruelty. Mrs. Miller had been confined in a private mental rest home for a year and a half prior to the commencement of the action. She had never been committed nor found to be insane by an order of the court.
December 31, 1943. Plaintiff petitioned for the appointment of a guardian ad litem to represent his wife at the divorce hearing, and Dr. Donald A. Nicholson was appointed as guardian ad litem for the wife.
February 4, 1944. Answer of general denial by guardian ad litem together with a report to the court as to the wife's mental condition.
February 9, 1944. After a hearing, findings of fact, conclusions of law, and interlocutory order were entered. The order granted a divorce to the plaintiff on the ground of cruelty, awarded the custody of the minor child of the parties to the plaintiff, awarded him all of the personal property, consisting of stocks in various corporations, three life insurance policies, and household and hospital furniture. The order also provided:
'Further Ordered, Adjudged and Decreed that plaintiff be and he is hereby directed to pay for all hospital care and keep, board and room of the defendant, until the further order of the court.
'Further Ordered, Adjudged and Decreed that if defendant should ever become capable of handling her own affairs and supporting herself, plaintiff should divide with defendant equally all property owned by him at that time when defendant is capable, mentally and physically, to look after and take care of her own affairs.'
August 17, 1944. Final decree of divorce.
Later, when the husband attempted to sell the real estate described in the interlocutory order, the title company refused to issue a policy of insurance on the property without guardianship proceedings being instituted. The following proceedings were then had in this matter:
November 27, 1944. Petition of Robert B. Miller asking for appointment of the National Bank of Commerce of Seattle as guardian of the estate of Kathleen S. Miller, incompetent.
December 18, 1944. Order appointing guardian.
January 5, 1945. Letters of guardianship, bond, and oath.
January 9, 1945. Petition of guardian to sell: 'All of Lot 14 and the South 20 feet of Lot 15, Block 4, Plat of the Town of Bremerton, Kitsap County, Washington, together with the furniture located in the building on said premises.'
January 9, 1945. Order permitting sale. The order provided in part: '* * * and it appearing that it is necessary to sell the interest of the ward in the hereinafter described real property to pay the costs of the guardianship, etc., and it further appearing that it is to the advantage of said ward that said guardianship estate be now disposed of, as the ward has an undivided one-half interest therein; * * *.'
January 29, 1945. Report of sale by guardian.
February 19, 1945. Order confirming sale. The order provides:
'* * * and it further appearing from the testimony herein that the said incompetent owns an undivided one -half interest in said property and that the other undivided one-half interest is in Robert B. Miller; and it appearing that the sale price includes the entire value of said real property and the furniture hereinafter described and that the ward's interest in said sale is one-half of $27,500.00 or $13,750.00 and that of said sale price or the down payment thereof $2,500.00 belongs to the ward and the other one-half to the said Robert B. Miller; and it further appearing from the testimony herein that the said Robert B. Miller is satisfied with said sale and that same is acceptable to him; and it appearing to the Court that said sale is a fair sale and a good sale and the Court being fully advised in the premises, it is, therefore,
'Ordered, that said sale of the following described real property, to-wit: [Here follows a description of the real estate.]
'To Victor R. Davis and Agnes C. Davis, his wife, for $27,500.00, or the ward's interest for $13,750.00, with $5,000.00 down (or the ward's interest--$2,500.00), and balance at the rate of $250.00 per month, or more (ward's interest being $125.00 per month), with interest thereon at six per cent per annum on deferred balances, be and same hereby is ratified, approved and confirmed, and the said guardian is hereby directed and authorized to join in a contract of sale with the said Robert B. Miller of said property.'
March 19, 1945. Real estate contract executed by guardian and Robert B. Miller, as sellers, and Victor R. Davis and Agnes C. Davis, his wife, as purchasers. The contract recites: ' '
March 25, 1946. Petition for citation, directing guardian to show cause why payments from sale of property should not be set over to the petitioner, Robert B. Miller, and that the guardian should have no further right, title, or interest in and to the same.
April 24, 1946. Answer of guardian to citation.
May 6, 1946. Decree. The decree provides:
'Ordered and Decreed that the incompetent, Kathleen S. Miller, has no right, title or interest in and to the following described property:
'Lot 14 and the South 20 feet of Lot 15, Block 4, Plat of the Town of Bremerton, Kitsap County, Washington.
'Nor any right, title or interest in and to the furniture therein nor to the contract entered into between the petitioner and the guardian of the said Kathleen S. Miller, incompetent, as sellers, and Victor R. and Agnes Davis, as buyers; nor to the proceeds, past, present or future, from said contract, and it is further
'Ordered and Decreed that the guardian is entitled to retain out of the moneys now in its hands, sufficient to pay necessary and proper costs of said guardianship, and an allowance of fees to said guardian and to its attorney, said guardianship having been applied for in good faith, and it is further
'Ordered and Decreed that after the payment of said allowances and costs expended by said guardian, that all the funds remaining in the hands of the guardian be delivered and paid to petitioner, Robert B. Miller, upon his receipt given therefore.'
At the outset, we are confronted with the question as to whether or not the wife was properly represented at the divorce hearing. Remington's Revised Statutes, § 188, provides for the appointment of a guardian ad litem for an insane person who is a party to an action.
In Rupe v. Robison, 139 Wash. 592, 247 P. 954, 47 A.L.R. 565, the husband was the general guardian of his insane wife. He sued for a divorce, and asked that a guardian ad litem be appointed to represent her at the hearing. A guardian ad litem was appointed, filed his answer, and appeared in contest of the proceedings. The husband was granted a divorce and was awarded all of the property of the parties. Certain of this property was sold by the husband to the plaintiff under a contract of sale. Suit was instituted to set aside the conveyance on the ground that the husband's failure to resign as the general guardian prior to the trial of the divorce action, constituted a cloud on...
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In re Det. of Hatfield
...supports this view. In particular, Rupe v. Robison, 139 Wash. 592, 247 P. 954 (1926), In re Guardianship of Miller, 26 Wash.2d 202, 173 P.2d 538 (1946), and Shelley v. Elfstrom, 13 Wash.App. 887, 538 P.2d 149 (1975), are instructive. ¶ 22 In Rupe, the court held that a husband could maintai......
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