Kuykendall v. Proctor, 685
| Decision Date | 20 June 1967 |
| Docket Number | No. 685,685 |
| Citation | 155 S.E.2d 293,270 N.C. 510 |
| Court | North Carolina Supreme Court |
| Parties | E. D. KUYKENDALL, Jr., Administrator of the Estate of Pattie B. Riddick, Deceased v. Mrs. Delia M. Zimmerman PROCTOR, Individually, and Mrs. Delia M. ZimmermanProctor, Guardian of the Estate of Mrs. Pattie B. Riddick, Incompetent, andMrs. Delia M. Zimmerman Proctor, Successor Trustee under a Trust IndentureExecuted by Lucy W.Ball on November, 15, 1929, Recorded in Deed Book 101, , Office of theRegister of Deeds of Durham County, North Carolina, and Deed Book 1747, Page534, Office of the Register of Deeds of Guilford County, North Carolina, forthe Use andBenefit of Mrs. Pattie B. Riddick et al. |
Wharton, Ivey & Wharton, Greensboro, and Watkins & Jarvis, Durham, for plaintiff.
Claude V. Jones, Durham, for defendant.
In determining the sufficiency of a complaint to withstand a demurrer filed on the ground that it does not state facts sufficient to constitute a cause of action, all facts well pleaded in the complaint, including inferences of fact reasonably deduced therefrom and the provisions of any document attached to and made a part of the complaint, are deemed admitted by the demurrer, but conclusions of the pleader as to the proper construction of such instrument are not admitted by the demurrer and are not binding upon the court. Gay v. Thompson, 266 N.C. 394, 146 S.E.2d 425; McLeod v. McLeod, 266 N.C. 144, 146 S.E.2d 65; Horton v. Redevelopment Commission, 259 N.C. 605, 131 S.E.2d 464; McCallum v. Old Republic Life Insurance Co., 259 N.C. 573, 131 S.E. 435.
General allegations of wrongdoing, which do not specify the alleged wrongful act or omission, such as the allegation that the defendant 'did other things not authorized by the laws of North Carolina in the management of a fiduciary estate,' are mere conclusions of law. These must be disregarded in determining the sufficiency of the pleading attacked by the demurrer. The question is, Assuming the facts to be as alleged in the complaint, together with the inferences reasonably to be drawn therefrom, and no others, is the plaintiff entitled to a judgment granting some relief? If so, it was error to sustain the demurrers.
The guardian of the estate of an incompetent person, who has no other adequate means or source of support, is authorized, if not required, to use, for the support of the ward in keeping with his or her age, condition and station in life, so much of the income from the ward's properties as is reasonably required for such purpose. See: Maryland Casualty Co. v. Lawing, 225 N.C. 103, 33 S.E.2d 609; Long v. Norcom, 37 N.C. 354; 39 C.J.S. Guardian and Ward § 62; 25 Am.Jur., Guardian was Ward, §§ 68 and 69. Consequently, the guardian cannot be held liable to the ward, or the ward's estate after the termination of the guardianship, for such expenditures, nothing else appearing.
It is alleged in the complaint that the expenditures by Mrs. Proctor, as guardian, of the income of her ward's estate provided for the ward only the 'bare necessities of life.' Assuming that some other person was under a legal duty to provide such support for the ward but failed and refused to do so, it would not be a violation of a guardian's duty to use income from the ward's property in order to provide the bare necessities of life pending efforts by the guardian to persuade or compel such other person to perform his duty. The law does not require the guardian to allow the ward to starve while the guardian litigates the ward's right to support by another. Thus, the application by Mrs. Proctor, as guardian, of the income of her ward's property to the support of the ward would not, of itself, make Mrs. Proctor, as guardian, liable to the ward or to the ward's administrator.
It is, however, also the duty of the guardian to preserve the estate of the ward and to take practicable action to enforce the ward's rights against others. Stewart v. McDade, 256 N.C. 630, 124 S.E.2d 822. G.S. § 33--20 provides, 'Every guardian Shall take possession, for the use of the ward, of All his estate, and May bring All necessary actions therefor.' (Emphasis added.) As stated by Settle, J., speaking for the Court, in Armfield v. Brown, 73 N.C. 81: It is the duty of a guardian of the estate of an incompetent person to exercise due diligence in the collection of an obligation owing to the ward. The guardian is liable to the ward's estate for any loss to it by his failure to do so. Coggins v. Flythe, 113 N.C. 102, 18 S.E. 96; 39 C.J.S. Guardian and Ward § 78. When the guardianship is terminated by the death of the ward, the right to compel the guardian to pay over the money of the ward then in his hands, or which ought then to be in his hands, passes to the administrator of the ward. Lowder v. Hathcock, 150 N.C. 438, 64 S.E. 194.
In Culp v. Lee, 109 N.C. 675, 14 S.E. 74, a guardian was sued for having accepted from the executor of an estate a smaller amount than should have been distributed to his wards. Clark, J., later C.J., speaking for the Court, said, 'If the guardian received for his wards a less sum than they were entitled to receive, it is true they can sue the guardian and his sureties for his default, but they have their election to sue either the guardian or the executor from whom he insufficiently collected the fund devised to them, or both.' Again in Luton v. Wilcox, 83 N.C. 20, 21, where a guardian was charged with having accepted in settlement of a bond due the ward a sum less than its face amount, Dillard, J., speaking for the Court, said, 'The rule of diligence established by the decided cases is, that a guardian in the management of his ward's estate must act in good faith and with that care and judgment that a man of ordinary prudence exercises in his own affairs.'
In Clodfelter v. Bost, 70 N.C. 733, the plaintiff, after becoming of age, sued his former guardian for the negligent failure to collect from the United States Government a pension, payable under the law for the benefit of the plaintiff by reason of the death of his father from wounds received in the Mexican War, such pension being no longer recoverable by the plaintiff from the government at the time of the institution of the action. In holding the guardian liable, the Court, speaking through Bynum, J., said:
'We conclude that all the facts which were within his knowledge were sufficient to put the defendant upon the enquiry as to the pension, and this, added to his negligence in the matters before referred to, properly subject the defendant to the payment of the pension money lost by his default.'
If Mrs. Proctor, as guardian, paid out money belonging to her ward's estate for the support of her ward when it was the legal right of the ward to require some other person to support her, it would then be the right and duty of the guardian to obtain reimbursement from the person so liable for the ward's support. It would, of course, be no less the duty of Mrs. Proctor as guardian, to seek such reimbursement where she, herself, as trustee, was the person under a duty to support the ward.
This Court has held that where a father of a minor child is financially able to support the child, the father, as guardian of the child's estate, may not claim credit in his accounts for expenditures of the funds of the child for his or her support. Burke v. Turner, 85 N.C. 500; 39 C.J.S. Guardian and Ward § 62d(3). There, the liability of the guardian was not for damages arising from the difference in quality of the support which the guardian supplied to the ward and that which the ward might have had if the person primarily liable had done his duty. The guardian's liability in that case was for diminution of the ward's estate resulting from the guardian's expenditure of the ward's funds and his failure to obtain reimbursement from the person liable for the support.
If this guardianship had terminated during the life of the ward, the ward could undoubtedly have sued the guardian for the recovery of assets which the guardian would have then had in possession if the guardian had diligently preserved the estate and had collected reimbursement from the person liable for the ward's support. Upon the death of the ward, this right would pass to the ward's administrator. The right of the ward to sue the guardian for lack of diligence in the care of the estate survives to the administrator. G.S. § 28--172. The action being for the recovery of money due the administrator from the guardian, it is not one for relief which could not be enjoyed, or the granting of which would be nugatory after death, so as to fall within the class specified in G.S. § 28--175(3).
Obviously, the estate in the hands of Mrs. Proctor, as...
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