In re Thomas' Estate
| Decision Date | 20 February 1899 |
| Citation | 26 Colo. 110,56 P. 907 |
| Parties | In re THOMAS' ESTATE. Appeal of COLE. |
| Court | Colorado Supreme Court |
Appeal from district court, Arapahoe county.
In the matter of the estate of James Thomas, a lunatic. George W Cole, as conservator of the estate of James Thomas, a lunatic, filed his report in the county court of Arapahoe county, to which exceptions were interposed. On the trial of the issues thus formed, the conservator was adjudged to be indebted to the estate in the sum of $2,958.89, and ordered to pay the same into court within a specified time, from which judgment he appealed to the district court, where, on trial de novo before a jury, a verdict was returned, finding the balance due from him to the estate to be $2,754.05. From a judgment for this amount, and order that he pay it into court within a time mentioned, he prosecutes this appeal. Modified.
George W. Miller and Daniel Sayer (C. M. Bice, of counsel), for appellant.
H. S Vaughn and W. W. Cover, for appellee.
Appellant was appointed conservator of the estate of James Thomas, a lunatic, by the county court of Arapahoe county, November 23 1888. For each of the years 1890, 1891, 1892, 1893, and 1894 he filed reports showing his receipts and disbursements, and on the 27th day of July, 1896, filed the report upon which the proceedings in the court below were had, from which it appears, after taking credit for disbursements allowed on previous reports, amount disbursed between date of the report preceding this, and claims for compensation, the estate was indebted to him in the sum of $1,953.89. The county court had directed the conservator to pay his ward weekly the sum of $5 for his support. The exceptions to the report, in substance, were: First, that it made no allowance for interest on money coming into the hands of conservator belonging to the estate; and, second, that none of the charges were valid or proper, except the weekly allowance, and such other items as had been paid under orders of the court. At the trial in the court below, the only evidence introduced was on behalf of appellant, the evidence for the estate being confined to that elicited on cross-examination. On the proceedings had in the district court, numerous errors are assigned by appellant; but only those argued will be noticed, and, as near as may be, in the order presented in the brief of his counsel.
In is report to which the exceptions were directed, the conservator, outside of specific items charged, asks to be allowed, as compensation for the care of his ward, for a period embracing seven years seven months and twenty-four days, $300 per annum, amounting in all to the sum of $2,295; also, commissions on the money received; and the first point made by his counsel is that the court erred in refusing to allow him to testify relative to the value of such services, the time consumed in ascertaining what property belonged to the estate, and in looking after his ward individually (in addition to specific charges for this last item), whether or not he neglected his own business in the performance of these duties, what his time in his business was worth when engaged in attending to that of conservator, and if it was neglected by reason of being compelled to look after his ward. It was proper that the conservator be permitted to testify in his own behalf regarding the value of services performed in caring for his ward; but the error of the court in not permitting him to do so in the first instance was subsequently cured by the reception of his evidence relative to the value of these services, so that the error committed was rendered harmless and without prejudice. Appellant, in his report, made no claim for services performed or time spent in determining what property belonged to the estate, unless embraced in the item 'commissions'; and although, in the first instance, he was not permitted to testify regarding the time consumed in ascertaining what property belonged to his ward, he was later, so that error cannot be predicated on the first ruling of the court on this subject. And that he may have neglected his own business in the performance of his duties as conservator, or what his time was worth to him in caring for his own affairs, was wholly immaterial; for the value of his services as conservator could not be measured or determined in that way; and it was not error to exclude evidence on these subjects. Under this head, it is also contended that similar testimony, sought to be introduced by witnesses called on behalf of appellant for that purpose, was also excluded. No witnesses testified except those called by appellant; and, even though the testimony of some of them regarding the value of the services rendered by the conservator, as such, was excluded, that of others on this subject was admitted; and the error of the court in this respect, if it was such, certainly did not prejudice appellant, for no testimony offered by him on his question was directly refuted, and the exclusion of the testimony of such witnesses on the other questions under consideration was proper, for the reasons already given.
The next point urged by counsel for appellant is that the court erred in allowing evidence to be elicited, on cross-examination, touching the question of how and where appellant kept the funds of his ward, how he cared for him individually, or regarding his failure to account for interest, or on the subject of the waste and mismanagement of the estate; for the reason that the exceptions filed were insufficient to permit any inquiry on these subjects, and for the further reason that it does not appear they were made in the name of the proper party in interest, or exhibited in proper form any cause of action against the conservator. An attack upon a pleading, made for the first time in this court, is not regarded with favor (Insurance Co. v. Bonner, 24 Colo. 220, 49 P. 366), and, when so attacked, will be upheld, if it is possible to do so. The sufficiency of the exceptions was not challenged in either court below, previous to trial; and although, in the district court, on motion for a new trial, the question of their sufficiency may be said to have been raised, the same rule with regard to pleadings so challenged for the first time also obtains, for a party should not be permitted to successfully attack the pleadings of his adversary after a trial upon the merits, unless so radically defective they will not support the judgment rendered. There does not seem to be any special statute regarding the filing of exceptions to the report of a conservator; but conceding, as a matter of practice, they should be, when objections are made to such report, then, although those filed in this case were very general, and a motion to make more specific, if interposed in apt time, should have been sustained, yet in their present form the conservator was advised that a claim would be made on behalf of the estate for interest on the funds which he had received. The court, in its instructions, advised the jury under what state of facts he would be liable for interest. By the exceptions he was also informed that all his charges against the fund in his hands would be contested, except those items which he had paid under order of court; and on this subject the court directed the jury to allow him credit for all sums he may have disbursed in legitimately and fairly administering on the affairs of the estate, and such amounts as he may have paid by order of the court previously obtained, or through the advice of the court, informally made; and also give him credit for the value of the services rendered in the discharge of his duties; and, without being understood as directly approving of the instructions given, it appears that, notwithstanding the indefinite character of the exceptions, the issues which he was entitled to have determined were as fully considered as though the exceptions had been more specific than they were; and as they were broad enough, in a general way, to include items which could have been particularized, so as to embrace such as were contemplated by the instructions given, he was not prejudiced by their want of particularity; and as no attempt to prove waste or mismanagement of the estate, except so far as it related to the failure of the conservator to invest the funds for the benefit of his ward, they are sufficient to sustain the verdict and judgment rendered, if warranted by the evidence. The exceptions purport to have been filed by counsel for the estate, acting under a special appointment as such. It was the duty of the county court, on the incoming of the report, if it appeared to contain items which should have been investigated and explained, to take the necessary steps to that end. The counsel appointed conducted the proceedings both in the county and district courts. No objection to his appearance, or the capacity in which he appeared, was made in either of the courts below. There is no specific method provided by statute regarding the practice in such cases, and the county court, charged with the duty of protecting estates of which it has obtained jurisdiction, in view of the fact that a large claim was made by the conservator, in the absence of a statute to the contrary, only exercised that inherent power with which it is clothed in such matters, by appointing some one to specially guard the interests of the estate.
The point is also made that counsel representing the estate made improper statements in his argument to the jury. These statements are incorporated in the record, and are to the effect that the judge of the county court had found against the conservator in the sum of $3,000, and that they (the jury) should do as he did,--'charge him interest, but...
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