42 Ind. App. 537 | Ind. Ct. App. | 1907
Lead Opinion
Appellant, on August 29, 1902, filed his final report as guardian of the appellee, who was in September, 1897, adjudged to be a person of unsound mind, and on July 3, 1902, adjudged to be of sound mind. In such report he set out in detail his receipts and expenditures, averred that the trust was fully administered, prayed for the allowance of certain sums for his services and for attorney’s fees, and that the report be approved and the trust declared closed upon the payment into court by the ward of such sum as was necessary, in addition to the cash balance in the guardian’s hands to discharge the advances made to the guardian and his attorney. The appellee filed written objections to the approval of this report, a trial was had, special finding of facts made, conclusions of law stated, and judgment rendered against appellant for $1,703.16 and costs.
Comstock, C. J., and Rabb, J., dissent.
Dissenting Opinion
Dissenting Opinion.
Action arising upon the exceptions filed to the final report of Charles Alcon, guardian of 'William H. Koons. Appellant on September 22, 1897, was, by the Marion Circuit Coxxrt, appointed guardian of appellee, William H. Koons, a persoxx of unsound mind, and sexwed as such guardian until July 3, -1902, on which date said Koons was adjudged by the same court to be a person of sound mind.
Appellant, as such guardian, filed his final report in said circuit court on August 29, 1902, in which he charged himself with a balance of $672.17. Appellee on Agust 12, 1904, filed his amended exceptions to this final report, in which he made five separate objections thereto, as follows: First. That at the time he was declared of unsound mind he was the owner of lot No. 32 in Lockwood & McLean’s addition to the city of Indianapolis, which consisted of a lot with dwelling-house thereon, and that it was of the value of $2,500; that it was encumbered by a mortgage for $500, which had been foreclosed prior to the appointment of appellant as guardian, and that under a px'oper decr-ee it had been sold to the mortgagee on July 17, 1897, for the sum of $655.37, the amount of the mortgage, with interest and costs; that there was in this real estate a right of redemption of
Hearing was had upon the guardian’s final report, and the exceptions thereto noted. Upon the request of appellee the court made a special finding of facts and stated six conclusions of law thereon. The first was to the effect that said Alcon was liable to Koons for $800, the value of the real estate described in finding number two, over and above the amount necessary to redeem the same; the second, that Alcon was liable to Koons for $200, the value of the real estate described in finding number three,'over and above the amount necessary to redeem the same; the third, fourth and fifth, that the third, fourth and fifth objections to the report were not sustained; the sixth, that Koons was entitled to the immediate possession of the mortgage note then in possession of Alcon. The appellant excepted separately and severally to the first, second and sixth conclusions, filed a motion for judgment in his favor and for a new trial, which motions were overruled. Appellee excepted severally and separately to the third, fourth and fifth conclusions. Appellee filed a motion for a new trial, which motion the court overruled and rendered judgment against appellant for $1,703.16.
For reversal appellant says that the trial court erred (1) in the conclusions of law stated on the special finding of facts; (2) in overruling appellant’s motion for judgment in his favor; (3) in overruling his motion for a new trial.
A special finding of facts and statement of conclusions of law thereon, in the case at bar, was proper practice. Peter
The office of a special finding is to find facts essential to support the judgment. The fact, and not evidence of a fact, is to be specially found. Trustees, etc., v. Shoemaker’s Estate (1898), 20 Ind. App. 319. A special finding must show all of the facts necessary to warrant the conclusions of law. Miller v. Stephenson (1901), 27 Ind. App. 271. If the findings are silent as to any material fact, it will be presumed to be against him on whom the burden rests.
The substance of said special findings two and three, is as follows: (2) That on September 22, 1897, appellee was the owner of an equity of redemption in lot No. 32 (describing it), which had been sold to the mortgagee by the sheriff of Marion county, on a decree of foreclosure on July 17,, 1897, for the sum of $655.37, being the full amount of principal, interest and costs adjudged against said Koons; that on the day of the appointment of said guardian and until July 16, 1898, this real estate was worth fully $800 more than the amount necessary for the redemption thereof; that appellant, as guardian, carelessly and negligently failed to make any reasonable effort to sell or dispose of his ward’s equity in the property at any time during the year allowed by law for the redemption thereof, and carelessly and negligently failed to convert other property belonging to his said ward into money with which to redeem the same from sheriff’s sale, and did not exercise such degree of care- and prudence, in the management of said real estate, and in relation to providing means for the redemption thereof, or in finding a purchaser for his ward’s interest therein, as an ordinarily prudent man employs in his own affairs, and that by reason thereof the trust was damaged in the sum of $800.
Omitting these conclusions, and there remain only the findings that the appellee was the owner of a certain equity of redemption in the real estate described, and that the guardian failed to dispose of it during the year allowed by law for redemption. There is no finding that it was even possible for a guardian to sell said equities. The findings upon the possibility of selling the equities in the different pieces of real estate which had been sold, are that they were worth fully a certain sum more than the amount received by the sheriff’s sale; such finding is not sufficient to make the guardian liable. Cash would have been necessary for the purpose of x*edemption, and it .should appear that it was possible to realize cash out of the right of redemption. The findings do not state the market value of the real estate, or that it had any market value. The expressions “rea
sale.” Reasonable worth imports the conditions of time and terms, and not a sale for cash. These findings do not fairly tend even to show that the equities could have been sold for cash within the time allowed for redemption. The alleged negligence of the guardian was not embraced in the report. Such negligence would not therefore be presumed. Wainwright v.-Smith (1886), 106 Ind. 239; Wainright v. Burroughs, supra. As to all matters in the report of a guardian questioned by exceptions, the report is the complaint of the guardian, and the burden is upon him to sustain it, but as to-negligence or nonfeasance of the guardian, consisting of matters outside the recorded facts, the burden is upon the exceptor. The following cases are in point: Kirby v. Coles (1836), 15 N. J. L. 441; In re Johnson’s Estate (1875), 11 Phila. (Pa.) 83; In re Palmer (1885), 3 Dem. Sur. 129; In re Thomas’s Estate (1887), 4 Kulp (Pa.) 446; Shepard v. Gill’s Admr. (1875), 49 Ala. 162; In re Estate of Millenovich (1869), 5 Nev. 161; Brownlee v. Hare (1878), 64 Ind. 311.
The burden was upon appellee to show the negligence of appellant in failing to redeem the equities in the real estate sold. There is no finding of any fact showing an opportunity to sell the equities, or that they might have been sold for their full value or for the amount of cash necessary to redeem them. The findings being silent on these
That the law imposes upon guardians important duties and requires that they be discharged with promptness and fidelity, that the 'proper court may authorize a guardian to borrow money to discharge liens upon the property of his ward, are propositions not disputed. In the case at bar the controlling question is, “ Are the conclusions of law supported by the facts specially found?” This question should, I think, be answered in the negative. Conclusions of law should be based upon ultimate 'facts found, and not evidentiary facts. To warrant a judgment against appellant the special findings should show that the guardian failed in selling the equities of redemption when such sale could have been made and the money realized thereby to redeem his Avard’s lands within the year for their redemption.
The judgment should be reversed, and a nevv trial had;
Rabb, J., concurs in the foregoing dissenting opinion.