Sheneman v. Manring
| Decision Date | 07 December 1940 |
| Docket Number | 34951. |
| Citation | 107 P.2d 741,152 Kan. 780 |
| Parties | SHENEMAN v. MANRING et al. |
| Court | Kansas Supreme Court |
Rehearing Denied Feb. 3, 1941.
Syllabus by the Court.
At common law, father was under no duty to contribute to support of an adult indigent daughter who was not a member of his household, though rule has been changed by constitutional mandate and by statutory enactments.
Under statutory and equitable powers vested in probate court, the probate court could direct guardian of an incompetent father's estate to make a reasonable monthly contribution to support of adult daughter and sole heir of incompetent father when daughter was in ill health, without means, and her only support was public charity, and when actual income of father's estate was ample for his own means and could readily afford such contribution. Gen.St.Supp.1939, 59-301 59-1801, 59-1804; Const. art. 3, § 8.
A reasonable attorney's fee was properly allowed by probate court for service of counsel in presenting claim of indigent daughter against incompetent father's estate for a reasonable monthly contribution to the support of the daughter and for sustaining the court's order in her behalf.
1. Under authority of the statutory and equitable powers vested in the probate court, the guardian of an incompetent father's estate may make a reasonable monthly contribution to the support of the adult daughter and sole heir of the incompetent father when she is in ill-health without means, and her only support is public charity, and when the annual income of the father's estate is ample for his own needs and can readily afford such contribution.
2. A reasonable attorney's fee was properly allowed for services of counsel in presenting the indigent daughter's claim and for sustaining the court's order in her behalf.
Appeal from District Court, Cowley County; Stewart S. Bloss, Judge.
Harold W. Herrick and Olin B. Scott, both of Winfield, for appellant.
Earl M Knight and George Templar, both of Arkansas City, for appellee.
This is an appeal from a judgment of the district court sustaining an order of the probate court which directed the guardian of an incompetent father to contribute to the support of the incompetent's indigent daughter.
The guardian hesitates to contribute to the daughter's need until this court has added its sanction to those of the probate and district courts which have held that this should be done.
The pertinent facts are not in dispute. It appears that On November 14, 1939, one Antone Dautschmann, 88 years of age and blind, was adjudged incompetent, and a few days thereafter the appellant was appointed and qualified as guardian of his estate. Dautschmann is a widower, residing in his own home under the care of a housekeeper. Of his five children all are now dead except one daughter, Mrs. Susie Manring, his sole heir at law. She is 47 years of age, in ill-health and poverty-stricken, and being supported by local public relief agencies.
At the time Dautschmann was adjudged incompetent his estate was worth about $30,000. Since then a son of his has died intestate and without issue, leaving an estate of about $15,000 which under the statute of descents augmented his incompetent father's estate to about $45,000.
The guardian testified that Dautschmann's annual income is about $1,880 to $2,000 per annum, his personal and household expenses about $600 to $720, his annual real and personal taxes about $416.91, and that the premium on the guardian's bond is $225 per annum.
The order of the probate court affirmed by the district court directed the guardian to contribute $50 per month to the indigent daughter until the further order of the court. From the financial figures given above it will be seen that the father's annual income is quite sufficient to permit compliance with the court's order without impairment of the principal of his estate.
It was stipulated that since the year 1934, Dautschmann (who was then 83 years of age and the daughter then 42 years of age) has refused to permit his daughter to live in his home and has refused to contribute to her support. What was their personal attitude towards each other and what if any was her need of financial assistance prior to 1934 was not shown.
On behalf of the appellant guardian it is argued that at common law there is no duty on the part of a father to contribute to the support of an adult indigent daughter who is not a member of his household. Quite true, but many years ago this state by constitutional mandate and by statutory enactments began to forsake the hard rules of the common law governing domestic relations and to substitute the more humane rules of the civil law in respect to such matters--the personaland property relations of husband and wife, of parent and child, and the transfer or devolution of their property. Consider also the statute of 1907 (G.S. 1935, 39-233), which in lunacy cases declared that parents are liable for the support of their incompetent children and that children are liable for the support of their incompetent parents. And see the well-considered opinions on this subject written by the late Mr. Justice Porter in State v. Bryan, 105 Kan. 483, 185 P. 25, and State v. Bateman, 110 Kan. 546, 204 P. 682. In that latter case, it was said:
The new probate code has something to say on the question at issue. After defining an incompetent person to include an insane, a lunatic, or distracted person incapable of managing his person or estate, G.S.1939 Supp. 59-1801, it provides for the appointment of a guardian for the person or property of such person, and in G.S. 1939 Supp. 59-1804 certain powers and duties are conferred on the guardian (subject to the control and direction of the court) including that of paying "reasonable charges" incurred for the support and maintenance of the children of his ward. It could be argued that "children" as there referred to means "minor children," but earlier in the same section of the statute the subject of "the support, maintenance and...
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