141 Ind. 492 | Ind. | 1895
Appellant brought this action against appellees. The complaint is in substance as follows:
That in 1891 Carrie Curran, appellant’s daughter, was a minor and unmarried; that appellees were the owners and proprietors of a newspaper in Madison, Indiana, and published in said newspaper a libel of and concerning said Carrie Curran, for which she brought an action against the appellees in the Jefferson Circuit Court, and asked to be allowed to prosecute the action as a poor person, which leave was refused by the court; that appellant and his daughter resided in Ripley county, Indiana, and he was thereupon appointed guardian of his daughter by the Ripley Circuit Court, and on motion was allowed, by the Jefferson Circuit Court, to be substituted in her said action as plaintiff, and as such filed an amended complaint, on which there was issue joined, a trial had and judgment rendered, on June 22, 1891, in favor of appellant, guardian of Carrie Curran, for $1,500 and costs against appellees; that she arrived at the age of twenty-one years on the 11th day of March, 1892, and after-wards, in 1892, married one ClelCain, an adult, who was then a resident of the State of Kentucky, where he and the said Carrie removed and have ever since resided; that appellant prosecuted said action for libel in his own name, as such guardian, to final judgment as aforesaid, and employed Nicholas Cornet, an attorney at law, to prosecute the same, and paid him a retainer fee of ten
Said ward, after she became of age, did not have an accounting with appellant, neither did her husband, either alone or with his wife, have such accounting, and they have at all times since their intermarriage been out of the jurisdiction of the State of Indiana. Said appellees, while said cause was pending in this court on
A demurrer for want of facts was sustained to the complaint, and appellant refusing to plead further, judgment was rendered against him. The only error urged is the action of the court in sustaining the demurrer to the complaint.
It is contended that the allegation in the complaint concerning the clerk’s procuring an order of the court
Appellees earnestly insist that a guardian has no lien on the ward’s estate, to reimburse him for reasonable costs and expenses paid or incurred in managing the ward’s estate. That when she became of age appellees had the right to settle said cause with her, and that, having done so while the same was pending in this court on appeal, and, she having executed a release of said judgment, appellant must look to her for reimbursement for his expenses, costs and attorneys’ fees which he has paid or is liable for.
It is well settled law that a trustee has an equitable right to be reimbursed for all reasonable expenses properly incurred in the execution of his trust, and' that the expenses of a trustee in the execution of his trust are a lien upon the estate, and he will not be compelled to part with the property until the disbursements are paid. 2 Perry Trusts, sections 485, 907, 910; 2 Pom. Eq. Juris., section 1085; 2 Jones Liens, sections 1175, 1177; Overton Liens, sections 587, 589.
A guardian, in a general sense, is a trustee. 1 Perry Trusts, section 1; 1 Pomeroy Eq. Juris., section 157; 2 Pomeroy Eq. Juris., sections 1088, 1097; Field Infants, section 132; Overton Liens, section 584.
He has an equitable lien on the same for his reimbursement, of which appellees and Carrie Curran were required to take notice. This is not an action to enforce the lien of an attorney for fees, but to reimburse a guardian for his expenses and liabilities incurred in the prosecution of the case, out of the judgment recovered; in other words, out of the fund. Even a next friend may enforce an equitable lien under like circumstances. 2 Jones Liens, section 1176; Daniel v. Powell, 29 Ga. 730.
It is not material whether appellant or his ward held the legal title to the judgment; appellees were bound to know that appellant held a lien on the fund recovered, which he could enforce for his protection. When they settled with the ward it was subject to the right of appellant to be reimbursed out of the judgment. Nor do we think the allegations in regard to fraud important. Appellant’s right to reimbursement results from the plainest principles of equity. As guardian he recovered the judgment incurred and paid costs and other expenses, and there being no other estate out of which he can be paid, he may resort to the judgment, even though appellees did not intend, by their settlement with his daughter, to cheat and defraud him. Appellant’s right to be reimbursed and to enforce an equitable lien is the same whether he is personally liable for attorney’s fees or is only liable in his fiduciary capacity.
It is true that if he had other funds of his ward in his hands sufficient to reimburse him, appellees could com
The reasoning in Yelton, Admr., v. Evansville, etc., R. R. Co., 134 Ind. 414, clearly sustains the proposition that the judgment recovered in this case is chargeable with the expense of collection, including costs of guardianship and attorneys’ fees.
Appellees contend “that appellant can not maintain an action against his ward, after she becomes of age, until his guardianship accounts have been fully settled in the court appointing him, and the balance found due to and awarded him by said court. McLane v. Curran, 133 Mass. 531, 43 Am. Rep. 535. For the appellant to maintain this action at all there must first be a debt due him from the ward; and, secondly, the debt must be a lien on the alleged judgment, not only as against the ward but also as against appellees.”
In a number of States, including Massachusetts, when the ward becomes of age no action can be maintained by either, against the other, until an accounting is had and the balance, either way, determined and ordered paid over by the court in which the appointment of guardian was made. If there is a balance due the ward he may then sue the guardian on his bond, or if the balance is due the guardian he may maintain an action therefor against his former ward. Tyler Infancy, 268-269.
But such is not the law in this State. It is provided by statute that when the ward arrives at the age of twenty-one years the guardian shall fully account, and pay over, to the proper person all the estate of the ward remaining in his hands. Section 2521, R. S. 1881 (section 2685, R. S. 1894).
It has been uniformly held by this court that when the ward becomes of age he has the right to sue upon the
In such action on the bond, an accounting may be had and judgment rendered on the bond for the amount found due, if anything.
Under these authorities it is clear that appellant was not required to first have an accounting in the Ripley Circuit Court before he could maintain this action. It follows, therefore that the court erred in sustaining the demurrer to the complaint.
Judgment reversed, with instructions to overrule the demurrer to the complaint.