Rupe v. Robison

Decision Date15 July 1926
Docket Number19416.
Citation139 Wash. 592,247 P. 954
PartiesRUPE et ux. v. ROBISON et al.
CourtWashington Supreme Court

Appeal from Superior Court, Kitsap County; French, Judge.

Action by J. M. Rupe and wife against Will A. Robison and another. Judgment for plaintiffs, and defendant named appeals. Reversed.

Holcomb J., dissenting.

Russell R. Farrell and James G. Combs, both of Seattle, for appellant.

Revelle Revelle & Kells, of Seattle, for respondents.

ASKREN J.

This is an action to rescind a contract whereby conveyances were made between the parties upon the ground that title to the property, delivered pursuant thereto by defendant Will A Robison, had a cloud thereon. The case was tried upon stipulated facts. Briefly summarized, they are: The wife of the defendant Robison was declared insane in 1913, and he was appointed her general guardian. He later brought suit for divorce on the ground that his wife had incurable dementia. The prayer was for divorce and possession of the community real estate of the parties. The insane wife was served by delivering to her personally a copy of the summons and complaint, as well as by delivering a copy thereof to the superintendent of the Western State Hospital, where she was confined, as provided by law. Upon request of the husband, the court appointed an attorney to appear as guardian ad litem in the divorce action upon behalf of the wife. The guardian ad litem filed his answer, and appeared in contest of the proceedings. At the trial, the husband testified in support of the allegations of his complaint, and also that he was her general guardian. The court granted a decree of divorce, and set over to the husband the real property in question. Certain of the real property was later transferred to the plaintiffs in this action. Thereafter suit was brought to set aside the conveyance upon the ground that the husband's failure to resign as general guardian prior to the trial of the divorce action constituted a cloud upon the title. The trial court upheld this contention, and entered its judgment accordingly.

It should be borne in mind that this was not an action by a guardian to determine any rights in connection with his guardianship, and that the only issue presented to the trial court and made the basis of appeal to this court is, Can the husband of an insane wife, while acting as her general guardian, maintain an action for divorce, if the court, with power to appoint and jurisdiction to hear the matter appoints a guardian ad litem for the wife to contest the proceedings.

There is no contention made in this case that the guardian ad litem failed in the performance of his duty in the representation of the insane wife, or that he was prevented from the full discharge of his duty by reason of the fact that the husband had failed to resign as general guardian. Nor is there any claim of fraud on the part of the husband or concealment of his position as general guardian. The appointment of a general guardian for an insane person does not prevent the appointment of a guardian ad litem by the court whenever it sees fit, for section 1581, Rem. Comp. Stat., provides:

'Nothing contained in this chapter shall affect or impair the power of any court to appoint a guardian to defend the interests of any minor, insane or mentally incompetent person interested in any suit * * * pending therein, or to commence and prosecute any suit in his behalf.' It is the contention of respondent that, since guardians respresent their wards in all proceedings in which the interests of such wards are attacked, a guardian is prohibited from bringing an action against his ward. This rule is too well settled to admit of controversy.

It is well stated in 28 C.J. 1245, as follows:

'A guardian cannot maintain an action at law against a ward pending the guardianship, or before his account is adjusted and settled.'

It is also stated in 12 R. C. L. 1148, as follows:

'That an action at common law cannot be maintained between the guardian and ward while that relation exists is clear. The character of the relation, the capacity in which the guardian acts, the duty to the ward's property (even if a guardian ad litem may be appointed where he is interested), forbid that he should occupy the distinctly adverse position of suitor at common law, especially as to transactions occurring since the guardianship commenced; * * * even if the guardian have an equitable right against the ward which he may justly assert as for partition of lands in which he and the ward are cotenants, he must make the ward a defendant instead of a co-plaintiff, and the ward must be represented by an independent guardian, and by a different counsel.'

The reason underlying the rule which prevents a guardian from suing his ward is well stated in the case of Davis v. Davis, 135 Miss. 214, 99 So. 673:

'At the time the complainant (appellant) instituted this suit she was the guardian of the appellee (defendant). As such guardian it was her duty to care for and manage the estate of the ward and report her acts and doings to the chancery court. It was her duty to defend any suits brought against her ward. The service of any process in any suit against the ward contemplates a service of this process also upon the guardian. The positions of guardian of a ward and of complainant in a suit against this ward are antagonistic. As long as this relationship
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5 cases
  • In re Det. of Hatfield
    • United States
    • Washington Court of Appeals
    • 23 novembre 2015
    ...of relevant case law, applying the word "appear" in the context of RCW 4.08.060, supports this view. In particular, Rupe v. Robison, 139 Wash. 592, 247 P. 954 (1926), In re Guardianship of Miller, 26 Wash.2d 202, 173 P.2d 538 (1946), and Shelley v. Elfstrom, 13 Wash.App. 887, 538 P.2d 149 (......
  • State, Dep't of Soc. & Health Servs. v. Gabhart (In re Dependency of P.H.V.S.)
    • United States
    • Washington Court of Appeals
    • 8 décembre 2014
    ...appointed guardian. A guardian ad litem has complete statutory power to represent the interests of the ward. Rupe v. Robison, 139 Wash. 592, 595, 247 Pac. 954, 47 A.L.R. 565 (1926). See, also, In re Miller, 26 Wash.2d 202, 173 P.2d 538 (1946).Dill, 60 Wash.2d at 150, 372 P.2d 541. ¶ 40 The ......
  • In re Miller's Guardianship
    • United States
    • Washington Supreme Court
    • 10 octobre 1946
    ... ... appointment of a guardian ad litem for an insane person who ... is a party to an action ... In ... Rupe v. Robison, 139 Wash. 592, 247 P. 954, 47 ... A.L.R. 565, the husband was the general guardian of his ... insane wife. He sued for a ... ...
  • Guardianship of Walters
    • United States
    • California Supreme Court
    • 16 mai 1951
    ...v. Tallant, 33 Cal. 45, 52; Loock v. Pioneer Title Ins. & Trust Co., 4 Cal.App.2d 245, 249, 40 P.2d 526; Rupe v. Robinson, 139 Wash. 592, 247 P. 954, 47 A.L.R. 565, 567. However, the mere existence of the pending action did not disqualify Rauch from acting as guardian of appellant's estate,......
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