Luke v. Kettenbach
Decision Date | 28 March 1919 |
Citation | 32 Idaho 191,181 P. 705 |
Parties | ANNIE WEASKUS LUKE, Appellant and Cross-respondent, v. WILLIAM F. KETTENBACH, Respondent and Cross-appellant |
Court | Idaho Supreme Court |
GUARDIAN AND WARD-PRACTICE IN PROBATE COURTS-SETTLEMENT OF GUARDIAN'S INTERMEDIATE ACCOUNTS-CONCLUSIVENESS OF-MINGLING OF FUNDS-ATTORNEY'S FEES-COMPENSATION OF GUARDIAN.
1. C L., sec. 4229, providing for the setting aside of judgments or decrees on account of mistake, inadvertence or excusable neglect, applies to probate practice.
2. The settlement and allowance of the annual or intermediate account of a guardian by the probate court is only prima facie evidence of its correctness, and is not conclusive against the ward so as to prevent re-examination by the probate court on the final accounting of the guardian of his entire management of the ward's estate. C. L., sec. 5602 as to the conclusiveness of settlements of administrators' accounts, is not made applicable to guardians' accounts by C. L., sec. 5809.
3. Where a guardian mingles his ward's funds with his own and it is not shown that he received any profit from the use of the ward's funds, the guardian should be charged with interest at the legal rate, with annual rests, on the amount of the funds of the ward so mingled with his own.
4. A guardian is entitled to credit for an attorney's fee paid by him for services rendered to the estate, when he shows necessity for such service, and that the amount so paid was reasonable.
5. A guardian is not entitled to recover attorney's fees incurred in resisting an attack upon his final account, which attack was invited by his own neglect and misconduct.
6. Compensation of a guardian for his services, under C. L sec. 5796, is not to be computed on the basis of fees and commissions, but is to be fixed in such amount as the court settling his accounts deems just and reasonable.
[As to use of ward to property, see note in 89 Am.St. 304]
APPEAL from the District Court of the Tenth, formerly Second Judicial District, for Nez Perce County. Hon. Edgar C. Steele, Judge.
Settlement of a guardian's final account on appeal from order of probate court. From the judgment entered in the district court, both parties appeal. Reversed and remanded.
Reversed and remanded with instructions. Costs awarded to appellant and cross-respondent.
Eugene and Lawrence E. O'Neill, for Appellant.
The probate court has jurisdiction to appoint a general guardian and to direct and control his conduct. After having made such appointment the court retains jurisdiction for all purposes in connection therewith until his accounts are rendered and he is legally discharged. The probate court may consider all the prior accounts filed on the consideration of a final account of a guardian. (Guardianship of Cardwell, 55 Cal. 137.)
If the guardian invests or deposits funds of the estate in his individual name and without designating his official capacity, thereby unnecessarily and wilfully mingling the trust property with his own, he becomes liable for its safety in all events. (Ross, Probate Law and Practice, sec. 675.)
The guardian must be held to pay interest under the rule holding him to strict accountability at the legal rate of 7 per cent compounded annually during the time the money was used by him or mingled with his own funds. (Guardianship of Cardwell, 55 Cal. 137; Taylor v. Hill, 87 Wis. 669, 58 N.W. 1055; Noble's Estate, 178 Pa. 460, 35 A. 859; 21 Cyc. 93.) He must be charged with interest if he fails within a reasonable time to invest his ward's funds. (Jacobia v. Terry, 92 Mich. 275, 52 N.W. 629; In re Guardianship of Thurston (Mather's Guardian v. Heath), 57 Wis. 104, 15 N.W. 126; In re Sanderson, 74 Cal. 199, 215, 15 P. 753.)
Directions for investments or orders of the court to invest to save the guardian from responsibility must be obtained before the investment is made. (Nagle v. Robins, 9 Wyo. 211, 62 P. 154, 796.) The guardian has charged fees in his final accounts under the statute for compensation of executors. (Sec. 5586, Rev. Codes.) This is error. Sec. 5796 provides that he is to be allowed the amount of his reasonable expenses incurred in the execution of his trust and he must also have such compensation for his services as the court in which his accounts are settled deems just and reasonable. This section controls as to guardians. (Ross, Probate Law, p. 999; Estates of Boyes, 151 Cal. 143, 90 P. 454.)
The allowance by the court to the guardian pays for all services except attorney's fees in lawsuits. (Douglass v. Folsom, 21 Nev. 441, 447, 33 P. 660.) A claim for fees by guardian for an attorney is like claims for additional compensation to an executor. When a claim is made therefor it should be scrutinized with care, and never allowed unless the court be satisfied that it is just and reasonable and the services for which it is made should be stated and particularly set forth. (Steel v. Holladay, 20 Ore. 462, 469, 26 P. 562, 563; May v. Green, 75 Ala. 162, 167; 2 Woerner on Am. Law of Administration, sec. 529; Miller's Exr. v. Simpson, 8 Ky. Law Rep. 518, 2 S.W. 171.)
The court controls the guardian until his accounts are settled. (Estate of Curtis, 121 Cal. 468, 53 P. 936; In re Allegier, 65 Cal. 228, 3 P. 849; Woerner on American Law of Guardianship, secs. 94, 101; State v. Roeper, 9 Mo.App. 21; State to Use of Koch v. Roeper, 82 Mo. 57.)
Geo. W. Tannahill and S. O. Tannahill, for Respondent.
Under the provisions of sec. 5602, Rev. Codes, the settlement of an account and the allowance thereof by the court, or upon appeal, is conclusive. (In re Coryell's Estate, 16 Idaho 201, 101 P. 723, 727; Chandler v. Probate Court, 26 Idaho 173, 141 P. 635.)
The probate court has no authority to review all the orders and decrees theretofore made, not only those made by himself, but his predecessors as well. (In re Wells' Estate and Guardianship, 140 Cal. 349, 73 P. 1065; King v. Chase, 159 Cal. 420, 115 P. 207; Church's Probate Law, p. 208; Brodrib v. Brodrib, 56 Cal. 563, 564; Veysey v. Veysey, 86 Wash. 553, 151 P. 39.)
The court is without authority to re-examine and revise the accounts previously made and settled. (Faxon v. All Persons, 166 Cal. 707, 137 P. 919, 921, L. R. A. 1916B, 1209; Title Guaranty & Surety Co. v. Slinker, 35 Okla. 128, 128 P. 696.)
"Guardians are not liable beyond what they receive, unless in case of gross neglect." (In re Clark's Estate, 39 Pa. Supr. Ct. 445.)
The guardian has a reasonable time within which to invest the funds, and six months is not an unreasonable time. (Anderson v. Silcox, 82 S.C. 109, 63 S.E. 128.)
"The matter of making allowances to guardians of incompetents for services rendered must be left to the discretion of the court." (In re Estate of Averill, 6 Cal. Unrep. 774, 66 P. 14.)
"A guardian is not chargeable with interest for money in his hands unless he has consented to take the money at interest, or unless it has been loaned out at interest under the direction of the court." (Hendricks v. Huddleston, 5 Smedes & M. (13 Miss.) 422; Reynolds v. Walker, 29 Miss. 250; Austin v. Lamar, 23 Miss. 189.)
On Sept. 12, 1906, William F. Kettenbach was appointed by the probate court of Nez Perce county guardian of the estate of George Weaskus, a blind and incompetent Indian. On Feb. 26, 1909, he filed his first report, showing that he had received funds of his ward in the sum of $ 6,944.44, but not showing when the money was received. This report was verified by his oath on Sept. 25, 1908. Deducting certain payments made by the guardian, and $ 367.20 fees and commissions claimed by him, this report showed a balance on hand of $ 3,311.82. The probate court approved this report, March 8, 1909.
The next report was filed by the guardian on Feb. 2, 1910. It consisted of this simple statement:
Annie Luke Bill, as sister and next friend of the ward, filed objections to this report, stating among her grounds of objection that "his said account filed on the second day of February, 1910, as and for his annual account of his dealings with the estate of the said incompetent, makes no showing as to the form in which the moneys heretofore received are held, in what property the same is invested or what rate of interest the same is now drawing, or what interest it has earned during the time the same has been in the hands of said guardian."
The probate court thereupon disallowed this account, and ordered the guardian to render a more complete account on or before Feb. 28, 1910. However, no further report was made until July 9, 1914, when he filed a report, showing $ 3,311.82 on hand Feb. 2, 1910, and interest collected amounting to $ 473.49. This report did not show the dates between which interest had been collected. The guardian stated in this report that the ward's money was then on deposit with the Idaho Trust Company, on a time certificate of deposit, dated Feb. 19, 1914, and bearing interest at 4% per annum, on which six months' interest would be due Aug. 19, 1914.
In this report credit was claimed for attorney's fees in the sum of $ 50.00. The report was approved by the probate court, July 22, 1914, and after allowing the credits claimed showed a balance in the guardian's hands, July 9, 1914, of $ 3,735.31.
On Sept. 5, 1914, the ward died, leaving a will by which he appointed his sister, Annie Weaskus Luke, executrix. The validity of the will was attacked by his son Phillip, who having lost the contest before the probate court, appealed to the district court for Nez Perce county. During the pendency of the...
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