Vanhorn v. Nestoss

• Decision Date: 09 January 1918
• Docket Number: 13647.
• Parties: VANHORN et al. v. NESTOSS et ux.
• Court: Washington Supreme Court

169 P. 807

99 Wash. 328

VANHORN et al. v. NESTOSS et ux.

No. 13647.

Supreme Court of Washington, En Banc.

January 9, 1918

Appeal from Superior Court, Lincoln County; E. H. Sullivan, Judge.

Action by Mary Jane Vanhorn and others, by L. E. Vanhorn, their guardian ad litem, against Henry R. Nestoss and wife. From a judgment granting a new trial, defendants appeal. Reversed and remanded, with directions.

Fullerton Parker, and Mount, JJ., dissenting.

Freece & Pettijohn, of Davenport, for appellants.

W. A Wilson, of Davenport, for respondents.

MAIN J.

The plaintiffs in this case are minors, and bring the action by their guardian ad litem for the purpose of having a sale of real estate in a guardianship proceeding declared illegal and void, and for the purpose of establishing their title to such real estate, the right to the possession thereof, and for the rents and profits. The property was sold through a guardianship proceeding and purchased by the defendants. The complaint attacks this proceeding as void, because the probate court had no jurisdiction over the estate of the wards at the time the property was ordered sold and the sale confirmed. The cause was tried to the court without a jury. Findings of fact and conclusions of law were entered sustaining the title of the defendants. Thereafter a motion for a new trial was made, supported by an affidavit which tended to show failure to publish notice of the sale as required by the order directing the sale. Upon further consideration of the case the trial court entered judgment, granting the motion for a new trial. From this judgment the defendants appeal.

The facts are these: On June 17, 1900, Isaac L. Vanhorn, the father of the respondents, died, having devised to the respondents an undivided half interest in the quarter section of land here in controversy. O the 2d day of July, 1900, the last will and testament of the deceased was duly admitted to probate. On the 30th day of August, 1902, an order was made by the superior court, distributing an undivided half interest in the property here in controversy to the respondents. When Isaac L. Vanhorn died, he left surviving him his wife, Christina Annie Vanhorn, and two minor children, Mary J. Vanhorn and Elizabeth A. Vanhorn. A son, Isaac L. Vanhorn, was born on the 7th day of October, 1900, a few months after his father's death. On November 14, 1902, Christina A. Vanhorn petitioned the superior court for Lincoln county to be appointed guardian of her three minor children, and on the same day an order making the appointment was entered. There was no provision in the order requiring a bond or fixing the amount thereof. In the petition for the appointment of a guardian it was asked that such appointment be made 'without bonds.' The order making the appointment was upon a printed form, and through that portion of the printed matter, which was to be filled in, covering the giving of the bond and the amount thereof, pen lines were drawn. On July 21, 1909, the guardian petitioned the superior court to sell the real estate owned by the minors. On July 26th an order was entered, directing the sale. On February 16, 1910, an order was entered, confirming the sale which had taken place prior thereto, and on the date fixed in the order directing the sale. At this sale the interest of the minors in the quarter section of land which had been devised to them by their father was purchased by the appellants. At the same time, by private arrangement, the mother's half interest in the same property was purchased by the same parties. The money received from the children's half interest in the land, together with the money which the mother received for her half interest, was invested in a half section of land near by, heavily incumbered by a mortgage. Approximately a year thereafter this half section of land was sold, and netted to the mother and children the sum of approximately $2,000, one half of which would belong to the mother, and the other half to the children. The evidence shows that no part of the children's money was either subsequently invested for them or applied to their education support, or payment of their just debts.

The complaint in this action attacks the sale in the guardianship proceeding as illegal and void, because, among other things, the court acquired no jurisdiction of the wards' estate because the guardian had given no bond. The first bond given by the guardian was on the 13th day of March, 1914, and long subsequent ot the sale under the guardianship proceeding through which the appellants claim title.

The first question is whether the giving of a bond by a guardian is a condition precedent to the right to act as such. In other words, if the guardian fails to give bond, does the court acquire any jurisdiction over the wards' estate. It is a general requirement of statutes providing for the appointment of guardians that the appointee shall give bond for the faithful execution of his trust, and under such statutes it is generally held that an act done without, or before, giving such bond, is a nullity. In 12 R. C. L. at page 1116, it is said:

'It is a universal requirement of the statutes providing for the judicial appointment of guardians that the appointee should give bond, in a sum fixed by the court and with surety acceptable to it, for the due execution of his trust. And it is usually held that the giving of such bond, the 'qualification' of the guardian as it is called, is a condition precedent to the vesting of his authority; and that any act done without or before the giving of such bond is a nullity.'

In Woerner on the American Law of Guardianship, at section 38, page 120, relative to the requirement that a guardian must give bond before he can act as such, it is said:

'The giving of the bond is generally held to be a prerequisite to the validity of the appointment, unless the statute authorizes the appointment without bond, and unless such is the case, no act of a guardian not having given bond is valid. * * *'

The statutes of this state, requiring a bond of the guardian, in effect at the time the sale here in question took place, are found in Rem. Code. Section 1632 of this Code provides:

'The court shall take of each guardian appointed under this act a bond, with approved security payable to the state of Washington, in the sum of not less than twice the value of the personal property and twice the estimated value of the annual rents, profits and issues of the real property belonging to the estate, conditioned as follows. * * *'

The follows the condition which the bond shall contain.

Section 1633 provides that:

'All the provisions of chapter 8 of this title relative to bonds given by executors and administrators shall apply to bonds taken of guardians.'

By this section the statutory requirement relative to bonds given by executors and administrators is made to apply to bonds given by guardians.

Section 1395, as to executors and administrators, requires that:

'Every person to whom letters testamentary or of administration are directed to issue must, before receiving them, execute a bond to the state of Washington, with two or more sufficient sureties, to be approved by the judge. * * *'

Section 1449 requires that:

'Every executor or administrator shall, after having qualified, by giving bond as hereinbefore provided, have a right to the immediate possession of all the real as well as personal estate of the deceased. * * *'

The statutes requiring a guardian to give bond are designed to protect the ward's estate. Reading section 1632, which requires that the court shall take of each guardian a bond, in connection with sections 1395 and 1449, which are made by statutory reference to apply to guardians, as well as executors and administrators, it is plain that the Legislature manifested an intention that the giving of a bond was a condition precedent to the right of the guardian to act. In other words, the guardian cannot qualify as such without the giving of such bond. These same statutes were under consideration by the federal Circuit Court of Appeals for the Ninth Circuit in Hatch v. Ferguson, 68 F. 43, 15 C. C. A. 201, 33 L. R. A. 759, and a like conclusion was there reached. In that case land of the wards had been sold in a proceeding in which a so-called guardian was acting as such, but who at no time had given the bond required by the statute. The court there, after reviewing the authorities, used this language:

'Considering the language of the Washington statute and the purpose which was intended to be subserved by the provision requiring a bond of the guardian before he should assume the duties of his office, we think it the better doctrine to hold that the statute is mandatory, and that the execution of a bond is made the necessary prerequisite to the appointment of a guardian. It was evidently contemplated that in the creation of guardianships two steps, equally indispensable, should be taken: First, the appointment; second, the giving of the requisite security by the guardian so nominated--and that the appointment without the bond, and the bond without the appointment, would be equally impotent to create the official relationship of guardian and ward. It is not the policy of the statute to extend to the purchaser at a guardian's sale the protection which in many instances is accorded to the innocent purchaser. The protection of the minor is deemed of the first importance. It is intended that the purchaser of the minor's property shall be placed upon inquiry to ascertain that the antecedent

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