150 Iowa 284 | Iowa | 1910
Lead Opinion
On March 26, 1906, J. M. Rinehart was appointed temporary guardian of the estate of Thomas Walker, after two trials before a jury upon the issue of Walker’s capacity to manage his estate. Before final judgment Avas rendered in the guardianship proceedings and on the ldth day of October, 1908, Walker died. It was found that he left a will, and O. McKeen Duran was appointed special administrator of his estate. Upon order of the court the temporary guardian made a report which was filed December 31, 1908. Notice of hearing was given, and the special administrator appeared and filed objections to the guardian’s report. The temporary guardian in his report stated that he held certain assets of the estate of his Avard pending the allowance of certain claims filed against him and the estate, and the special administrator objected to these claims and the allowance thereof for the reason that they were not chargeable against the guardian or the estate in his hands, but were claims against the estate of Walker, deceased, and should fie allowed, if at all, by the probate court or the administrator or executor appointed to administer the estate of the deceased. These claims were for attorney’s fees and costs incurred in the litigation growing out of the appointment of the temporary guardian. That the case may be better understood and the views of the trial court on the issues joined brought out, we here copy the following from an opinion filed by the judge.
Eirst. The court finds that the sole powers of a temporary guardian (in the absence of an order of court) are to collect and preserve the property of his Avard till the appointment of a permanent guardian, or till the time of his discharge, if no permanent guardian is appointed, or till the appointment of an administrator of the estate of his ward.'
Third. The court refuses to allow the costs of said litigation, as claimed by the said temporary guardian, J. M. Kinehart, and refuses to allow the attorney’s fees of the said F. hi. Williams and the said Albrook & Lundy, said acts of said temporary guardian having been illegal; and the court refuses to attempt to ratify or approve said illegal acts of said guardian at the expense of the ward’s estate after the death of the said ward.
Fourth. The court further finds that in a proceeding of this kind and character, the court, after the death of the said ward, has no power, right, jurisdiction, or authority to take the ward’s estate out of the hands of his administrator and in this guardianship matter expend it for the payment of said costs and attorney’s fees that were incurred without the order of this court; but in so finding the court does not attempt in any way to adjudicate the right of the temporary guardian to file a claim against the estate of the said Thomas Walker, it being intended in this finding that that question should be left open for the parties to proceed as they may be advised in the premises.
Fifth. The court further finds that said temporary guardian, J. M. Kinehart, has been paid for his services as such guardian the sum of $150, which said sum the court finds to be full and ample compensation for all services rendered by the said guardian.
These conclusions, both of fact and law, are challenged by appellant, while appellee contends that the holding is in accord with our prior decisions, notably: Ordway v. Phelps, 45 Iowa, 281; In re Guardianship of Lindsay, 132 Iowa, 119; Bates v. Dunham, 58 Iowa, 308; Slusher v. Hammond, 94 Iowa, 516; In re Estate of Manning, 134 Iowa, 169.
The items out of which the controversy arose were costs and expenses incurred in the litigation which resulted in the appointment of the temporary guardian. and attorney’s fees contracted by the guardian after he had been appointed to maintain himself as such guardian. The appointment was made on the petition of John Walker, and, as already stated, the case was tried twice in the district court and was once before this court. See Walker v. Walker, 115 N. W. (Iowa) 1132. Such being the record, should these claims have been allowed in the matter of the guardianship, or were they claims to be considered in the matter of the estate of the deceased? It is manifest, we think, that all matters properly connected with the guardianship proceedings
Nothing said in In re Guardianship of Lindsay, 132 Iowa, 119, runs counter to these views, as an examination will show. In re Estate of Manning, 131 Iowa, 169, is nearer in point; but that case does not decide what court should 'determine the question of attorney’s fees incurred by the temporary guardian in maintaining himself in that position. The very court having jurisdiction of the matter impliedly consented to such employment, and the services were valuable to the ward’s estate. At least, we must so find in the absence of some showing to the contrary; and, in view of the verdicts of the jury, it is doubtful if it could be .shown that the services were not of value. Certain expenses as costs of suit and attorney’s fees incurred as in this case need not be with the express approval of the trial court. See, on this proposition, In re Tolifaro, 113 Iowa, 747. We think a prima facie case was made for the allowance of some of the claims, and that the trial court was in error in holding that they could only be -settled in the probate court administering the estate of the
It was the duty of the temporary guardian to maintain himself in that position for the benefit of his ward’s estate, and, having been appointed .after a verdict, -such appointment was presumptively beneficial. All reasonable costs and charges incurred should have been allowed.
For the reasons pointed out, the order must be, and it is, reversed.
Rehearing
SUPPLEMENTAL OPINION ON REHEARING.
Friday, February, 17, 1911.
In a petition for n rehearing our at-' tention has been called to a mistake of fact in the opinion heretofore filed herein, and to the further fact that due consideration was not given the case of Ordway v. Phelps, 45 Iowa, 281. A re-examination of the record shows that we were mistaken in saying that the guardian was appointed as the result of a second trial. The facts in this connection are that Phinehart was appointed temporary guardian upon an ex parte showing, and as such took possession of some of the property of the ward; that there were thereafter two trials, the first resulting in a disagreement, and the second in a verdict of a jury finding Walker incompetent and a proper subject for guardianship. This last verdict was set aside by the trial court, and upon appeal here the order was sustained. Walker v. Walker, 115 N. W. (Iowa) 1132. Before another trial could be had,
Coming now to the law: The case most' strongly relied' upon by appellee, to wit, Ordway v. Phelps, 45 Iowa, 279, was cited in the original opinion; but nothing was said specifically of the doctrine of that opinion. It is strenuously insisted that the case is controlling, and calls for an affirmance of the order made by the trial court. In view of this contention, we have thought it advisable to note the facts which distinguish.that case from this. In that case attorneys, who, it is claimed, had rendered services for ia guardian of one deceased, filed a claim with the administrator of'the estate of the deceased, seeking to hold the estate liable. They did not claim anything of the guardian, but elected to present their claim against the estate of the deceased. The trial court in that case, without' request of either party and upon, its own motion, ordered the matter transferred to the guardianship proceedings, and directed that the attorneys file their claim with the
Here the guardian filed his report upon order of court. He presented his claims for expenses incurred, and asked for a full settlement of all matters connected with his trusteeship. The administrator appeared and filed objections, and was properly in court. The court itself had jurisdiction of the subject-matter and of all the parties, and there was no occasion for ordering the matter transferred to the estate of Walker. The Ordway case does not hold that, in a guardianship proceeding, proper and reasonable charges and expenses can not be considered and allowed in settling the matters of his guardianship, although his ward may have died pending the guardianship. True, the guardian can not, after the death of his ward, incur additional expenses, save such as are necessary to preserve the property until it may properly be turned over to the representative -of the estate; but upon final settlement of his accounts he should be allowed the proper and reasonable expenses, if any, incurred by him before the death of his ward.
The original opinion, with these modifications, is adhered to, and the petition for rehearing is overruled.