In re Paddock’s Guardianship

• Decision Date: 09 September 1941
• Docket Number: 8412
• Citation: 299 N.W. 867,68 S.D. 183
• Parties: IN THE MATTER OF THE GUARDIANSHIP OF ORRIN PADDOCK, JR., A minor.
• Court: South Dakota Supreme Court

68 SD 183, 299 NW 867 (1941)

IN THE MATTER OF THE GUARDIANSHIP OF ORRIN PADDOCK, JR., A minor.

South Dakota Supreme Court

Appeal from Circuit Court, Clay County, SD

Hon. A. B. Beck, Judge.

#8412–Affirmed.

Andrew S. Bogue, Parker, SD

M. T. Woods, Bailey, Voorhees, Woods & Bottum, Sioux Falls, SD

Attorneys for Appellant.

Everett A. Bogue, Vermillion, SD

Attorney for Respondent.

Opinion filed Sep 9, 1941

RUDOLPH, J.

This is a companion case to the case of In re Estate of Orrin Paddock, 68 SD 179, 299 NW 865 (1941). Donald McMurchie, one of the administrators of the Orrin Paddock estate, was appointed guardian of the estate and person of Orrin Paddock, Jr. At the time of the appointment of the guardian, the ward was eleven years of age. The guardianship continued through out the minority of the ward until he became of legal age on June 19, 1938. On July 16, 1938, the county court made its order discharging the guardian. This present proceeding is an application on behalf of the ward to have the order discharging the guardian set aside. The case was tried de novo in the circuit court under the provisions of SDC 35.2111, and the circuit court entered its order setting aside the discharge of the guardian. The guardian has now appealed to this court.

Ten days following the date when Orrin Paddock, Jr., reached his majority, he signed and delivered to his guardian an instrument, as follows:

“State of South Dakota ss.

“County of Turner

“Orrin Paddock, Jr., being duly sworn says; that he is the Orrin Paddock Jr., named in the above entitled guardianship proceedings; that he is now twenty one years of age; that he was twenty one years of age on the 19th day of June, 1938; that he has received from his guardian, Donald McMurchie, all property of every name, nature and description coming to the said Guardian for this affiant and the affiant asks that the said Donald McMurchie be discharged as his guardian.

“Orrin Paddock.

“Subscribed and sworn to before me this 29th day of June, 1938.

“John N. Thomson, “(Seal) Notary Public, South Dakota.”

The question of the jurisdiction of the county court to set aside this discharge of the guardian is governed by the opinion in the Paddock Estate case, No. 8411, supra. Appellant contends in this case that the release signed by the ward precludes the court from now setting aside the discharge. With regard to this release the trial court found, as follows:

“That at the time the said guardian made the purported settlement with his ward and obtained from him an alleged release, and prior thereto, the said guardian failed to inform his said ward as to all the facts with reference to his various transactions as such guardian; and that said ward was not fully advised as to the said guardianship at the time of said settlement and at the time he signed said purported release.”

SDC 14.0512 provides, as follows:

“After a ward has come to his majority, he may settle accounts with his guardian and give him a release which is valid if obtained fairly and without undue influence.

“A guardian appointed by a court is not entitled to his discharge until one year after the ward’s majority.” Whether the last portion of the above quoted section, in view of the release, is sufficient justification for the court’s present order we need not now decide. The court having jurisdiction to determine whether...