140 P. 825 | Ariz. | 1914
Appeal from an order of allowance and settlement of guardian’s account and from an order authorizing and directing the guardian to sell real estate of the ward. In 1906 'the appellee married May Harris, the mother of Emma J. Harris who was then about ten years old. The mother, May Harris Lyon, died June or July 17, 1907, leaving no estate. From that time on Emma Harris lived with her grandmother, Mrs. Lena White, who was the mother of May Harris Lyon. The appellee, stepfather to Emma, was; a party to an arrangement that she should live with her grandmother, he to furnish her housing, clothing, food and medical attention and generally to provide for them. While perhaps there was no definite agreement in terms to such an arrangement, the subsequent conduct was along those lines. The appellee made provision for the grandmother and minor in this, manner from June 17, 1907, until March 11, 1912, simply as the stepfather to Emma. On the last-mentioned date he secured letters of guardianship of both the person and estate of the minor, but continued the arrangements, with slight
The law imposes upon the parent the duty of caring for his 'child during the period of its inability to eare for itself, and only in exceptional cases may he use the estate of the latter for that purpose. In this ease the minor, Emma Harris, after her mother’s death, was left without parents and without any available or tangible estate. She was but ten years old and of delicate constitution. The appellee, either because of his being the husband of her mother and therefore the child’s stepfather, or out of sympathy for her in her helpless condition, or both, without any legal obligation to do so, undertook to care for her out of his own means. Without letters of guardianship, he provided for her and her grandmother, furnishing them the ordinary and necessary comforts of life from June 17, 1907, until March 11, 1912.
While appellee was under no natural, and therefore no legal, obligation to care for the minor child, the assumption of that duty by him carried with it legal responsibilities.
As is said in the note to National Valley Bank v. Hancock, 57 L. R. A. 729 (100 Va. 101, 93 Am. St. Rep. 933, 40 S. E. 611) : “The universal rule is that a stepfather, as such, is not under obligation to support the children of his wife by a former husband, but that, if he takes the children into his family or under his care in such a way that he places himself in loco parentis, he assumes an obligation to support them, and acquires a correlative right to their services. ’ ’
In Sharp v. Cropsey, 11 Barb. (N. Y.) 224, it is said: “The stepfather is not bound to support his stepchildren, nor the latter to render him any services; but if he maintains them, or they labor for him, they will be deemed to have dealt with each other in the character of parent and child, and not as strangers, without obligation on the part of the father to pay for his children’s services, or on the part of the children to remunerate their father for their support.” See National Valley Bank v. Hancock, supra, and Bartley v. Richtmyer, 53 Am. Dec. 338 (4 N. Y. 38), for collection of cases on this point
“A. When Emma’s mother first died there wasn’t any property except that piece of land on the Mesa, and I didn’t think it was worth anything at all, and lots of times I called in Ap John and didn’t think about getting a receipt. I paid him and kept no record of it. I paid very little attention to it because I didn’t think there was anything in the Mesa land.
“Q. When did you first have any assurance you would get anything out of the Mesa land?
“A. I first began to believe that the property might be of value in 1909 or 1910.
“Q. As to getting the title, when did you begin to have hopes of getting title to it ?
“A. About a year ago.”
The intention or purpose to require repayment is essential (In re Tucker, 74 Mo. App. 331, 337); otherwise the support will be considered voluntary and gratuitous.
The appellee relies upon In re Besondy, 32 Minn. 385, 50 Am. Rep. 579, 20 N. W. 366, to support his contention that he is entitled to reimbursement. In this ease the stepchild’s estate consisted of $1,138.40 cash, and it was expressly arranged between the stepfather and mother that the child should live with them and be supported as one of the family, and that the estate money should be applied and used in payment therefor. The court said: “The arrangement made by the stepfather, though invalid as a contract, is sufficient to rebut the presumption that he took the child into his family to support in loco parentis, and on account of his tender years he could render no service in return for such support. . . . And a stepfather is, of course, not bound to maintain the children of his wife by a former husband. But if he voluntarily assumes the parental relation and receives them into
To the same point appellee cites In re Beisel’s Estate, 110 Cal. 267, 40 Pac. 961, 42 Pac. 819, and says: “In view of the fact that we have the same statute on guardian and ward- as the state of California, we regard, and urge upon this court, the case of Beisel as the most persuasivé authority.” In this ease the mother was allowed for the maintenance of her minor children for over five years before she was appointed their, guardian. However, their estate, consisting of $4,007 and some realty, was in the possession" and control of the mother during all that time. The court said: “Appellant contends that there was no warrant for an allowance by way of credit to Mrs. Sherrer for maintenance of the minor children during the time when there were no letters of guardianship upon their estates. But she is charged in equity as a quasi guardian or trustee of their estates, and the accounting must be deemed in the nature of an accounting in equity, and determined upon equitable principles. The court finds in substance that the action of Mrs. Sherrer, as the mother of the children, was bona fide; and it had jurisdiction to allow reasonable and proper credits to her for their maintenance and for expenditures incurred on their account. A guardian de facto, who is not a guardian de jure, will be held to account in equity only upon equitable principles, and will be allowed for all proper disbursements for the benefit of the ward. Peale’s Admr. v. Thurmond, 77 Va. 756. ‘The rule is that where an infant has property of his own, and his father is dead, or. is not able to support him, he may be maintained and educated out of the income of property absolutely his own, by the person in whose hands the property is held; and a court of equity will allow all payments made for this pur
Under the peculiar facts of this case we are satisfied that the trial court committed error in allowing and settling the appellee’s accounts for the care and maintenance of Emma' Harris prior to letters of guardianship.
The petition for authority to sell the homestead represents that the land is unproductive, and that it is necessary that the same be sold in order to realize money with which to pay off the appellee’s allowed claim of $3,365 and to care for the future education and support of the minor. The order ap
The courts have many times passed upon this section, holding that the antecedent debts of the entryman cannot be collected out of the homestead against the will and consent of the entryman. Sprinkle v. West, 62 Wash. 587, Ann. Cas. 1912D, 281, 34 L. R. A. (N. S.) 404, 114 Pac. 430; Sorrels v. Self, 43 Ark. 451; Towner v. Rodogab, 33 Wash. 153, 99 Am. St. Rep. 936, 74 Pac. 50. While the right of the heir to claim the same exemption from debts contracted by him prior to the issuance of patent has not been before the courts so often, there is the same uniformity in the decisions to the effect that the heir takes the land free from his antecedent debts.
In Coleman v. McCormick, 37 Minn. 179, 33 N. W. 556, the original entrywoman devised the land to her brother, to whom patent was issued. The question was as to whether a debt contracted by patentee before the patent was issued to him as such devisee under the provisions of section 2291, Revised Statutes of the United States, could be enforced as against the land. That court said: “The statute provides specifically for the acquisition of a patent by the homestead
It follows that the court erred in ordering the Emma Harris homestead interest to be sold to pay debts contracted by her prior to the issuance of the patent.
On a new trial, the court should disallow the appellee’s claim for care and maintenance and money laid out in cultivating and improving land, attorneys and in fact all expenditures prior to his appointment as guardian. The appellee should be allowed all necessary expenditures-since his appointment as guardian that have been made for the support of his ward or the protection of her rights in homestead. Should
Judgment is reversed, with directions to proceed in accordance with this opinion.
FRANKLIN, C. J., and CUNNINGHAM, J., concur.
Application for rehearing denied.
NOTE.—On the question of the parent’s duty to support as affected by child’s property interests, see note in 57 L. B. A. 729.
As to the right of a parent to sue child for support, see note in 4 L. B. A. (N. S.) 1159.
As to the liability of claim or interest in public lands for debts contracted before issuance of patent, see note in 34 L. B. A. (N. S.) 405.