Stewart v. Unger

• Decision Date: 08 June 1909
• Docket Number: 6,441
• Citation: 88 N.E. 716,44 Ind.App. 87
• Parties: STEWART v. UNGER
• Court: Indiana Appellate Court

88 N.E. 716

44 Ind.App. 87

STEWART v. UNGER

No. 6,441

Court of Appeals of Indiana

June 8, 1909

From White Circuit Court; A. H. Plummer, Judge.

Action by Charles E. Stewart against John B. Unger (Templeton White being substituted on appeal), as guardian of Elizabeth White a person of unsound mind. From a judgment for defendant plaintiff appeals.

Affirmed.

Bowers & Murphy, for appellant.

Alvah Taylor, for appellee.

OPINION

MYERS, J.

Appellant brought this action against John B. Unger as guardian of the estate of Elizabeth White, a person of unsound mind. A demurrer to the complaint for want of facts was sustained. Since the submission of this cause Unger resigned as such guardian, and appellee White, upon the order of this court, was substituted.

In the complaint it was in substance alleged that in January, 1900, Elizabeth White was notoriously and violently insane and at large in Wabash county, and wholly destitute of care and attention; that she was wholly incapacitated to contract for, and procure or to provide herself with, the necessaries of life; that she was without a guardian; that no person, either as a relative or otherwise, was caring or offering to care for her, and she was exposing herself to the severe winter weather, and was armed with an ax and other weapons, endangering the lives and property of herself and all other persons within her reach; that for her benefit and welfare appellant took her to his own home, and there provided her with suitable board, lodging, nursing and other necessaries, and continued to do so for sixty days; that continuously during that period she remained in said deranged mental condition, and was without a guardian, and without the care and attention of any other person, except appellant; that said services and provisions were unusual and necessary, and of the reasonable value of $ 5 per day. It was further alleged that in 1900 said Unger was duly appointed by the court below as guardian of the person and property of said Elizabeth White, and qualified as such guardian. The complaint shows payment demanded, its refusal, and that a stated sum of money is due and unpaid; that said Elizabeth White is the owner of property, from which ample proceeds can be derived to pay for said necessaries and services.

The appellee, by way of supporting the action of the court, contends that the pleading was in the form of a complaint in a civil action against the guardian, and was not in proper form for the settlement of a claim against the ward's estate addressed to the court as a court of probate jurisdiction. In this State the practice requires that disputed claims against a ward's estate, whether an infant or a person of unsound mind, be presented by a complaint or petition against the guardian in a court having jurisdiction of the ward's estate and the person of the guardian. State, ex rel., v. Fitch (1888), 113 Ind. 478, 16 N.E. 396; Turner v. Flagg (1893), 6 Ind.App. 563; Rooker v. Rooker (1878), 60 Ind. 550; Gwaltney v. Cannon (1869), 31 Ind. 227.

In McNabb v. Clipp (1892), 5 Ind.App. 204, 31 N.E. 858, an action against a guardian upon her contract for board and lodging supplied to the ward, upon which the guardian was held personally liable, it was said that "under our code there is no such thing as filing a claim against a guardianship or against the estate of a ward. Hence the designation of the appellant as guardian must be treated as a mere descriptio personae." Citing Clark v. Casler (1848) 1 Ind. 243; Lewis v. Edwards (1873), 44 Ind. 333; Elson v. Spraker (1885), 100 Ind. 374. Under the authorities before cited, it will be seen that this action was properly brought.

It has also been held that in a suit against a guardian for the allowance of a claim against the estate of his ward, and for an order directing payment by the guardian out of such estate, the ward is not a necessary party. Ray v. McGinnis (1882), 81 Ind. 451. See, also, Miller v. Hart (1893), 135 Ind. 201, 34 N.E. 1003.

The real question in this case is whether the complaint sufficiently shows a valid claim against the estate of Elizabeth White. No contract between the appellant and Unger, either as guardian or personally, is shown by the complaint. It appears from that pleading that the person to whom appellant rendered the service stated was at the time well known by the appellant to be of unsound mind. He alleges that she was notoriously and violently insane, and describes open manifestation of her insanity. It is shown that because of her manifest insanity the services were rendered. She was incapable, as he knew, of binding herself or her estate by express contract, and the question is presented whether, upon the facts stated, a contract to pay for the services was created by law. The law is sensitive of the welfare of persons of unsound mind. The law is the real guardian of the insane, and the person nominated by the court as guardian is the agent of the law through the court.

The complaint does not show that at the time the appellant rendered the insane person the services alleged she had no relative or person upon whom she was entitled to rely for such services, or who was legally bound to render such services, or to pay for the same. It does not appear whether she was a minor daughter or the wife of a person competent to provide for her necessities. The complaint shows that at the time of the filing thereof...