In re Nolan's Guardianship
| Decision Date | 18 July 1933 |
| Docket Number | No. 41960.,41960. |
| Citation | 249 N.W. 648,216 Iowa 903 |
| Parties | In re NOLAN'S GUARDIANSHIP. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Dubuque County; P. J. Nelson, Judge.
Action for the removal of guardian, objections to her final report, and application requiring guardian to pay new guardian all moneys found due the estate. The American Surety Company was not made a party to the original proceedings, but, as surety on guardian's bond, voluntarily appeared in support of guardian's final report. The court found the guardian was indebted to the estate in the sum of $11,140.07, and ordered her to pay that sum to the new guardian. There was no appeal by the guardian; the American Surety Company appeals.
Affirmed.Smith & O'Connor, of Dubuque, for American Surety Co.
Cahill, Boland & Hines, of Cedar Rapids, for present guardian.
J. Frank Healy, of Cedar Rapids, for former guardian.
Lena Nolan Ament was appointed guardian of the property of her minor daughter, Mary Magdalene Nolan, in 1912, and as such guardian came into the possession of about $12,000 of her daughter's property. There are two questions in controversy in this case.
(1) The first relates to alleged overcharges made by the guardian for the support and education of her ward from 1917 to 1931, inclusive.
(2) The second relates to an alleged liability of the guardian for investing her ward's funds in two certain notes and mortgages without first obtaining authority of court so to do. One of these loans was a $4,000 note and mortgage on the J. J. Brunkan loan purchased in February, 1929; the other was the Conrad May loan, purchased in April, 1929, for $6,000.
I. Mrs. Ament's first husband, Mr. Nolan, died about 1911, and she remarried in 1916, when she and her second husband removed to Carroll, Iowa.
[1] After Mr. Nolan died, the guardian had property in her own right worth about $30,000. She made no charges against her minor daughter for support and education prior to 1917. At that time the court found she still had sufficient property to support her own daughter. Ordinarily where a parent has sufficient means of her own, she will not be entitled to compensation for her child's support from its estate. Welch v. Burris, 29 Iowa, 186;Bradford's Heirs v. Bodfish, 39 Iowa, 681;In re Carter, 120 Iowa, 215, 94 N. W. 488.
It was the finding of the lower court that the guardian as mother of the ward was not entitled to compensation for support of her own daughter for the years 1917 and 1918. She had made no charges for support up to 1917. The court also found that the charges made and received from 1919 to 1931, inclusive, ranging from $120 for the first year to $500 for the last six years, were excessive, and that the amounts received by the guardian, in excess of the reasonable value of the compensation together with interest thereon from 1917 to 1931, inclusive, for such support was $3,004.58.
The court also found that the total amount of overcharges received by the mother guardian for her daughter's education between 1918 and 1930 was $2,820.29, including interest from the time said amounts were received.
The lower court found as a matter of fact that the approval of the overcharges made in the various reports for support and education were secured through false representations.
[2] Without discussing the evidence in detail, it is sufficient to say that, from the evidence introduced and from the statements made by the mother, the lower court's finding cannot be disturbed. As the findings of the court upon these questions of fact have the same force and effect as the finding of a jury, they are binding upon us. It is therefore our conclusion that the finding of the lower court upon the overcharges made by the mother and guardian must be sustained.
II. Complaint is also made of the court's ruling against the guardian for losses sustained by investments made in 1929, in a note and mortgage executed by Mr. J. J. Brunkan in the sum of $4,000; and an investment, without a prior order of court in a $6,000 note and mortgage executed by Conrad May.
Appellee contends that, because these investments were made by the guardian without a prior order of court approving the same, the guardian should be held responsible for any loss resulting therefrom.
The mortgages securing the notes in question were foreclosed by the present guardian. On such foreclosure the real estate secured by the Brunkan mortgage sold for $2,061.11 less than the amount due thereon; the real estate covered by the May mortgage sold for $3,254.09 less than the amount due thereon-leaving a total deficit of $5,315.20 as a loss to this estate by reason of said investments. The court entered judgment against the guardian therefor.
Appellant contends that the court erred in so doing because said investments were subsequently approved by the court in June, 1929. The Brunkan loan of $4,000 was purchased by the guardian in February, 1929, and the May loan was purchased in April, 1929. The first report of these two investments was not made to the court until June, 1929. The only reference to these investments made in the June report was as follows:
“This guardian now reports the following investments of funds of said estate:
J. J. Brunkan note and mortgage on real estate 6%, $4,000.00.
Conrad May note and mortgage on real estate 6%, $6,000.”
This appears to be the only reference to the character of these securities. The same kind of a reference thereto was made in the report of 1930. Both of these reports were approved by the court in June, 1929 and 1930, after the investments were made.
Appellee contends that these investments were unauthorized and illegally made because a prior order of court approving them was not secured before they were made, as provided by section 12772 of the present Code.
This court has frequently held that investments made without a prior order of court, but subsequently approved by the court, would validate the investment. Robinson v. Irwin, 204 Iowa, 98, 101, 214 N. W. 696;In re Guardianship of Benson, 213 Iowa, 492, 495, 239 N. W. 79;In re Lawson's Will (Iowa) 244 N. W. 739;Valley Nat. Bank v. Crosby, 108 Iowa, 651, 655, 79 N. W. 383.
These cases were all based upon investments made without a prior order of court authorizing them, but subsequently approved. Such approvals, however, were made prior to the adoption of section 12772 of the present Code. This statute became effective on April 25, 1929. The statute in force prior thereto provided as follows: “Where investments of funds are to be made, including those to be made by executors, administrators, trustees, and guardians, and no mode of investment is pointed out by statute, they may under order of court be made [in the following securities, etc.].” Section 12772, Code of 1927.
In the cases hereinabove referred to, the investments made without a prior court order were considered approved by a subsequent order of approval obtained prior to April 25, 1929.
It was contended in all the cases hereinabove...
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