Lothrop v. Duffield

• Court: Michigan Supreme Court
• Writing for the Court: HOOKER, J.
• Citation: Lothrop v. Duffield, 134 Mich. 485, 96 N.W. 577 (Mich. 1903)
• Decision Date: 30 September 1903
• Parties: LOTHROP et al. v. DUFFIELD.

96 N.W. 577

134 Mich. 485

LOTHROP et al. v. DUFFIELD.

Supreme Court of Michigan

September 30, 1903

Appeal from Circuit Court, Wayne County, in Chancery; George S Hosmer, Judge.

Suit by George Van Ness Lothrop and others, infants, by their next friend, Isabella G. B. Lothrop, against Henry M. Duffield. Decree for complainants. Defendant appeals. Affirmed.

Otto Kirchner, for appellant.

Angell Boynton, McMillan & Bodman, for appellees.

HOOKER J.

The complainants comprise several infants and their guardian. They file this bill to set aside an order made by the judge of probate allowing to the defendant a sum therein mentioned as attorney's fees for services rendered in relation to securing for the complainants, from other descendants of their common ancestor, a concession by which their shares of the grandfather's estate were materially increased. The petition is entitled in the estate of the minors, and prays the allowance to the petitioner of reasonable compensation for his services. It states briefly the nature of the services rendered, and the amount of time spent, but claims no specific sum. The petition bears the following indorsement: 'In the Wayne County Probate Court. In the Estate of George V. N. Lothrop et al., Minors. Isabella G. B. Lothrop, guardian of said minor children answering the within petition, says that she has read the same and knows the contents thereof, and that the same is true of her own knowledge in many respects, and in all other respects she believes it to be true; that she is unfamiliar with the value of legal services of this character, and submits the amount thereof to the decision and judgment of this honorable court. [Signed] Isabella G. B. Lothrop, Guardian of Said Minors. Dated February 19, 1900.'

The bill alleges, and the testimony tends to show, that the guardian was surprised at the magnitude of the allowance, and has no recollection of seeing or signing the petition, and that when she signed it she did not apprehend its purport and purpose. This is controverted. The bill prays that the order may be set aside, and defendant decreed to be not entitled to any compensation, that he be enjoined from further prosecuting a claim for such services, and for general relief, it being claimed that the order operated as a legal fraud upon the infants. The circuit court found that the signature of the guardian to the consent was made under a misapprehension, and decreed that the order be set aside and held for naught, and also that the prosecution of an action brought thereon in the circuit court for the county of Wayne be enjoined, but without prejudice to the right of the defendant to make a further application to the probate court in relation to the matter in controversy.

We are of the opinion that the proper practice was not followed in obtaining the order complained of. There was no privity of contract between these infants and the defendant. Whatever contract relations he had were with their guardian, who could not bind the infants personally or their estate by contract (except by authority of the probate court, in accordance with law), so as to subject their estates to claims filed by third parties for expenses incurred by the guardian. The practice has generally been for the guardian or executor to pay or incur such obligations, and include the amounts in his account against the estate. In Jones v. Brewer, 1 Pick. 317, it is said that, 'It is a well-settled general principle that a guardian cannot by his contract bind the person or estate of his ward.' See, also, Thacher v. Dinsmore, 5 Mass. 299, 4 Am. Dec. 61. In Forster v. Fuller, 6 Mass. 58, 4 Am. Dec. 87, it was said: 'As an administrator cannot by his promise bind the estate of his intestate, so neither can the guardian by his contract bind the person or estate of his ward.' Approved in Wallis v. Bardwell, 126 Mass. 366, and in Rollins v. Marsh, 128 Mass. 116, where it was held that 'a contract by a guardian for the support of his ward binds the guardian, and not the ward.' Bicknell v. Bicknell, 111 Mass. 265; Mass. Hosp. v. Fairbanks, 132 Mass. 414; Turner v. Flagg, 6 Ind. App. 563, 33 N.E. 1104; Stevenson v. Bruce, 10 Ind. 397; Lewis v. Edwards, 44 Ind. 333; Yourie v. Nelson, 1 Tenn. Ch. 617; Cobbey v. Buchanan, 48 Neb. 391, 67 N.W. 176; Hunt v. Maldonado, 89 Cal. 637, 27 P. 56. In the last-mentioned case it was said: 'If the guardian made a valid contract with the attorney, he may be held liable, and if he pays it, and the probate court shall think the expenditure reasonable and necessary, it may be allowed from the ward's estate. But it is an expense incurred by the guardian in the performance of his duties, for which he is primarily liable.' Fish v. McCarthy, 96 Cal. 484, 31 P. 529, 31 Am. St. Rep. 237. In Tobin v. Addison, 2 Strob. 3, it was said: 'The guardian is responsible to every one contracting with him, and not the estate of his ward; against and with it he is to account, and debts paid for its benefit he is allowed to submit as charges against the ward.' In Fessenden v. Jones, 52 N.C. 14, 75 Am. Dec. 445, it was said: 'The single question presented in this case is whether a guardian, who calls in a physician to the slave of his ward, can be rightfully charged with, and made responsible for, the medicines and services rendered. The court is clearly of the opinion he may be. The credit in such case is not only in point of fact given to the guardian, but ought to have been so given. The guardian is charged with the duty of controlling and managing the person and property of the ward and judging of the expenditures which may be needful for either, and he alone is informed of the condition of the ward's resources. Hence the contract should be made with the guardian, and hence the guardian ought to be looked to for payment.' Myers v. Cohn (Com. Pl.) 23 N.Y.S. 996; Copley v. O'Niel, 57 Barb. 299; Adams v. Jones, 8 Mo. App. 602; Lusk v. Kershow, 17 Colo. 488, 30 P. 62; Epperson v. Nugent, 57 Miss. 45, 34 Am. Rep. 434. 'A guardian cannot, by his own contract, bind the person or estate of his ward.' Sperry v. Fanning, 80 Ill. 371. 'A guardian has no power to bind either the person or the estate of his ward by contract.' Reading v. Wilson, 38 N. J. Eq. 446; Scott v. Porter, 44 Miss. 364; McGavock v. Whitfield, 45 Miss. 453. In Dalton v. Jones, 51 Miss, 585, it was said: 'The law places under the control of the guardian the property of every description of the ward charged with the duty of making it productive and of supporting the ward out of its income. The law does not leave the amount of expenditure for maintenance and education to the discretion of the guardian. This sum must be fixed by the court. If the income be insufficient, the court may order a sale of the requisite amount of property, etc. Sections 1219, 1220, Code 1871. If a guardian contracts for the education or maintenance of his ward without the sanction of the chancery court, he incurs a personal responsibility, and cannot be allowed for it in his accounts with his ward. A guardian has no power to bind the estate of his ward without the sanction of the chancery court.' Poole v. Wilkinson, 42 Ga. 539. 'A guardian cannot borrow money and bind his ward therefor, nor can he, by any contract other than those specifically allowed by law, bind his ward's property or create any lien thereon.' Rice v. Paschal, 59 Ga. 637; Westmoreland v. Davis, 1 Ala. 299; Simms v. Norris, 5 Ala. 42. 'Demands of this nature have several times been brought before this court. It has always held that debts contracted as this was are the proper debts of the persons occupying the position of trustees, including executors, administrators, and guardians, and, when made in obedience to the duties of the trust, impose upon them a personal liability. The seller,' or, we may insert, the person to whom a debt is contracted, 'must look to them for payment, and they must look to the trust estate for reimbursement. This is everwhere in this country, as well as in England, held to be the law.' St. Joseph's Academy v. Augustini, 55 Ala. 495. 'It has been repeatedly decided in Massachusetts that a guardian has no power to bind the ward or his estate by contract.' Brown v. Eggleston, 53 Conn. 119, 2 A. 321. Suit for counsel feew was required to be brought against the guardian, and not the ward, in Phelps v. Worcester, 11 N.H. 51. 'In general, he cannot bind the person or estate of his ward.' Tenney v. Evans, 14 N.H. 351, 40 Am. Dec. 194. See, also, Hardy v. Bank, 61 N.Y. 34. The same doctrine is repeatedly stated in Woerner on Guardianship, pp. 164, 185, 192, 272, 281, 470.

The foregoing authorities ought to set the question at rest, although a few cases, some based on statutes and others not, hold the contrary. If it is true that the petitioner was entitled to file and have allowed this claim against the estates of the wards, it must follow that he who furnishes any article to the guardian for the benefit of the ward may harass the estate and the court with a petition for its allowance. It is as true where the claim is for a paper of pins as any other article or service. See, also, Sheahan v. Circuit Jusge, 42 Mich. 69, 3 N.W. 259; Wood v. Truax, 39 Mich. 628; Bearinger v. Pelton, 78 Mich. 114, 43 N.W. 1042; Comp. Laws, � 8705; Hoga's Estate v. Look (Mich.) 96 N.W. 439.

We have not overlooked the case of Jackson v. Leech's Estate, 113 Mich. 390, 71 N.W. 846. If the impression exists that this case is at variance...