In re Talomase's Estate
| Decision Date | 01 April 1924 |
| Docket Number | 13035. |
| Citation | 225 P. 156,98 Okla. 212,1924 OK 375 |
| Parties | IN RE TALOMASE'S ESTATE. v. KELLY. TALOMASE |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The county court has original jurisdiction in the settlement of guardian's accounts; and items of accounts which have not been included in the report filed in the county court cannot be considered by the district court on appeal.
Items of a guardianship account for compensation for the guardian and items for fees for the guardian's attorneys, which are not included in the guardian's report as filed in the county court, cannot be considered by the district court on appeal.
The district court has no original jurisdiction of the settlement of guardianship accounts, but has appellate jurisdiction only; and where an appeal is taken to the district court from the orders of the county court in guardianship matters new items of account offered in the district court by way of amendment to the report of the guardian cannot be considered.
Where the employment of attorneys by the guardian is necessary and sanctioned by the probate court, and the services rendered are beneficial to the ward's estate, and the charges therefor are reasonable, attorney's fees are allowable out of the ward's estate; but, where the services of the attorney are rendered for the guardian in a contest between the guardian and his ward for the purpose of defeating legal and substantial rights of the ward, such fees are not allowable out of the estate of the ward.
Where a guardian asks for credit for attorney's fees out of the estate of his ward, it is incumbent upon the guardian to show that employment of an attorney was necessary for the protection of his ward's estate, and that the services rendered were beneficial to his ward's estate, and that the amount for which credit is claimed is reasonable.
Where a guardian seeks compensation out of his ward's estate, it is incumbent upon such guardian to show that he has honestly managed the estate of his ward and has made an honest effort to make a true report of the condition of the ward's estate before such compensation is allowed; but where a guardian has mismanaged the estate of his ward or fails to make an honest effort to submit a true report of his ward's estate, amounting to fraud practiced upon his ward, compensation for services of the guardian should not be allowed.
Where a guardian has used valuable property of his ward's estate without accounting for the reasonable usable value thereof and has used a substantial sum of his ward's money without accounting for interest thereon, to the extent that such usable value of the property and interest upon the money so used amounts to more than just compensation for the guardian for services rendered, no further or other compensation for his services should be allowed.
Record examined, and held, that the allowance of $400 to the guardian's attorney for two years' services for and on behalf of the ward is not supported by the evidence but is decidedly against the weight of the evidence, and should not be allowed; and held, that the $250 and $400 items for attorney fees allowed were not for services rendered for the benefit of the ward's estate, but the services for which the fees were allowed were rendered in an effort to deprive the ward of substantial legal rights, and should not be allowed out of the ward's estate; and held, that the item of $400 allowed as compensation to the guardian is not supported by the evidence, but is against the weight of the evidence; and held, that the record shows that the guardian has been amply compensated for his services by his use of valuable property and considerable sums of money of his ward for his own purposes, without paying for the use of the property or interest on the money; and held, that the judgment of the trial court should be reversed with directions as in the opinion stated.
Commissioners' Opinion, Division No. 4.
Appeal from District Court, Okmulgee County; John L. Norman, Judge.
Where an appeal is taken to the district court from the orders of the county court in guardianship matters, new items of account offered in the district court by way of amendment to the report of the guardian cannot be considered.
In the matter of the estate of Emma Talomase. Proceeding by Emma Talomase against Wadley Kelly, her guardian. From a judgment of the district court on appeal from the county court, involving the final report of defendant as guardian, plaintiff appeals. Reversed, with directions.
Hummer & Foster, of Henryetta, and R. C. Simpson, of Okmulgee, for plaintiff in error.
J. H. Lincoln, of Henryetta, and W. W. Wood and W. W. Witten, both of Okmulgee, for defendant in error.
The plaintiff in error, Emma Talomase, in this cause will be referred to as the ward, and Wadley Kelly, the defendant in error, will be referred to as the guardian in this opinion.
Wadley Kelly was appointed guardian of Emma Talomase, then a minor, some time prior to the year 1907. It appears from the record that the ward was born in 1900, and that when she was 7 years old she went to live at the home of her guardian. She became of age some time in 1918. It appears that on the 10th of January, 1919, the guardian signed a verified final report of his guardianship, and asked to be discharged as such guardian. The report as filed by the guardian shows a balance on hand, cash in the bank, in the sum of $7.91. This final report was filed in the county court of Okmulgee county on the 18th of August, 1920. On the 22d of October, 1920, the guardian filed a supplemental final report under oath, showing the ward indebted to him in the sum of $64.57. On the same day objections were filed to such final and amended report, verified by the ward. On the 23d of October, 1920, the ward filed objections to the final report and all reports filed by the guardian since 1911. A hearing was had in the county court upon the final and other reports and the objections thereto on the 28th of October, 1920; and on that date a judgment was entered and journal entry filed finding Wadley Kelly, the guardian, indebted to his ward in the sum of $3,849.86. From this judgment the guardian prosecuted an appeal both upon questions of law and fact to the district court of Okmulgee county. In March, 1921, the cause came on for hearing and the district court appointed Fred Carter referee and set the case for hearing on the 17th of March, 1921. On that date the guardian appeared, and asked leave to file a supplemental report or an amendment to the final report, and upon leave granted filed what he denominated "amendment to final report." In this amendment he asked to include three items of account, amounting to $77.30, and also to include two other items as follows: Compensation for himself in the sum of $1,000, and attorney fees in the sum of $1,000--and prayed for credit upon his account for the sum of $2,000 to cover said last two items. The cause was then heard before the referee upon the reports and supplemental reports as amended, and the objections thereto as filed in the county court; and at the close of the hearing the referee found a balance due the ward from her guardian in the sum of approximately $2,220, against which sum he allowed the guardian credit for $400 for two years' services, $200 for attendance upon the district court trial, $400 for his attorney's services for two years, $250 attorney's fees for the county court trial, $500 attorney's fees for the district court trial, and charged one-half of the court costs in the county court to the ward, and charged all of the costs in the district court, including referee and stenographer's fees, to the ward. This seems to leave a balance due the ward, as figured by the referee in his report, of $471.79. Out of this balance the ward would owe half of the court costs in the county court and all the costs in the district court trial, including the referee and stenographer's fees.
Upon objections presented to the report of the referee the district court modified the findings of the referee to the extent of reducing the allowance to the guardian by striking out the $200 allowed for his attendance upon the trial in the district court, and allowed $150 for the services of the referee and $85 for the services of the stenographer, and provided that such expense should be divided between the guardian and ward, and otherwise permitted the report of the referee to stand. The order of the district court had the effect of adding to the indebtedness of the guardian to his ward the sum of $200, from which is to be deducted $117.50 half of the referee and stenographer fees, leaving an aggregate sum of $554.29 out of which the ward is required to pay half of the court costs in the county court trial and all of the costs in the district court trial other than referee and stenographer fees; the aggregate amount of such costs not being stated in the record here, and leaving her, of course, to settle with her own attorneys. If she pays them on the liberal basis fixed in the allowance to the attorneys for the guardian she will not only be required to pay out the entire amount found in her favor, but will owe an additional amount of more than $200. If this judgment is permitted to stand, the ward would better have accepted the amendment to the final report, and made settlement with her guardian by paying him the balance of $64.57, and would thereby have saved for herself out of the wreck more than $100. It appears that she has the satisfaction of having won her case against her guardian, if it may be called a satisfaction, but it has cost her the entire amount owing to her by her guardian, and something more, to force him to disgorge. The ward is made to...
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