Tracy v. Martin

• Decision Date: 26 May 1952
• Docket Number: No. 42771,42771
• Citation: 363 Mo. 108,249 S.W.2d 321
• Parties: TRACY et al. v. MARTIN et al.
• Court: Missouri Supreme Court

Page 321

249 S.W.2d 321

363 Mo. 108

TRACY et al. v. MARTIN et al.

No. 42771.

Supreme Court of Missouri, en Banc.

May 26, 1952.

Rehearing Denied June 9, 1952.

Walther, Hecker, Walther & Barnard, William J. O'Herin, St. Louis, for Walter L. Roos, appellant (intervenor).

J. L. London, St. Louis, for Edwin F. Tracy, appellant (plaintiff).

Forrest M. Hemker, St. Louis, Willson, Cunningham & McClellan, St. Louis, for respondent.

Fordyce, Mayne, Hartman, Renard & Stribling, C. P. Fordyce, St. Louis, for Marie T. Wygant, Executrix of Estate of Elizabeth Sloan Delany, deceased.

LEEDY, Judge.

This appeal, involving an allowance to a guardian ad litem, went to the St. Louis Court of Appeals where the judgment of the circuit court fixing the amount of the fee, and ordering it charged against one of the prevailing parties was reversed, and the cause remanded with directions, 239 S.W.2d 567, to review which this court ordered transfer under Art. V, Sec. 10, Const. of Mo., 1945, V.A.M.S. and rule 2.06 of this court.

The case out of which the present controversy arises was one in equity, brought by kinsmen of Elizabeth Sloan Delany, an elderly and infirm widow, to cancel a trust indenture executed by her by which she conveyed and assigned to a trustee her real and personal property valued at $300,000 for the ultimate benefit of individuals who were not related to her. She was joined as a defendant, as were the trustee (individually and in his representative capacity) and life beneficiaries, together with the remainderman, Elizabeth Martin, a minor. The petition sought also to quiet title to the realty, as well as other relief. Walter L. Roos, who had been previously appointed as Mrs. Delany's guardian and curator, intervened and prayed that the trust instrument be held void, and that he be declared her duly appointed guardian and exclusively in charge of her person and property, and for other relief. Decree for plaintiffs and the intervenor granting the relief sought, and designating and authorizing Roos to act as receiver, in effect, of his incompetent ward's estate. This court affirmed, Tracy v. Sluggett, 360 Mo. 1120, 232 S.W.2d 926. See, also, In re Delany, Mo.App., 226 S.W.2d 366, a connected case.

The fact situation as it relates to the issues on this appeal is simple and undisputed. Richard Dawson Gunn was regularly appointed and served as guardian ad litem for the minor defendant (remainderman), Elizabeth Martin. The trial itself extended over a period of 13 1/2 days. The total amount of time devoted to the case and reasonably required of the guardian ad litem was 20 days. At the conclusion of the case, the court made an allowance of $1800 for such services. After hearing testimony touching the financial responsibility of the minor (then 17 years of age), which showed her to be indigent, the court found that there was 'no other source or fund available out of which the said Richard D. Gunn may be compensated for his services * * * other than the assets of the estate of Elizabeth S. Delany, non compos mentis, for the preservation of which this action was instituted,' and, accordingly, ordered that the allowance be charged against such incompetent's estate. From the judgment thus rendered plaintiffs and intervenor prosecute the present appeal. During its pendency, and after transfer to this court, the death of Elizabeth Sloan Delany was suggested, and Marie Tracy Wygant, as executrix of her estate, was substituted as a party appellant in the place of Walter L. Roos, guardian and curator. The executrix thereafter filed verified 'suggestions of change of status of Elizabeth Martin,' setting up the fact of the minor's subsequent marriage and removal to the State of California, in consequence of which it was asserted that under the laws of that state the minor 'is now deemed of the age of majority for purposes of contracting or dealing with property.' It was further averred that by reason of certain devises and bequests to her under Mrs. Delany's will, the minor 'now has sufficient funds with which to pay and discharge the fee allowed her guardian ad litem.' On respondent's motion, such suggestions were ordered stricken from the files. The case will, therefore, be determined in this court upon the same record as that before the Court of Appeals.

On the former submission in the St. Louis Court of Appeals it was held, in substance, that the allowance to the guardian ad litem could not be paid from the property and estate of Mrs. Delany, because to do so 'would violate the rule that a guardian ad litem to participate in a fund must have attempted to promote the best interests of the rightful owner of the fund; that his efforts must have been designed to result in real benefit to the estate; that the costs of litigation should not be assessed against the successful party; that where the efforts of the guardian ad litem are antagonistic to the estate he shall look elsewhere for his compensation; that where the efforts of the guardian ad litem are directed solely to the promotion of individual interests, those interests must sustain the expense; that guardian ad litem fees will not be ordered paid out of a fund where the interest of the infant in the fund was purely contingent.'

We are constrained to hold that the facts in judgment do not warrant the application of the principles upon which that decision rests, and this because of the exceptional position, status and duties of a guardian ad litem as an officer of the court coupled with the absence of any source other than the fund in court from which the officer might be compensated. The appointment of a guardian ad litem for the minor defendant was mandatorily required under Sec. 507.190 of the statutes (all statutory references are to RSMo 1949 and V.A.M.S., unless otherwise expressly noted), which reads: 'After...