75 Wash. 353 | Wash. | 1913
This is an appeal by Mrs. Linda Burfield Hazzard from a decree of the superior court of Kitsap county, settling her final account as guardian of Miss E. Dorothy Williamson. The facts determinative of the questions here presented are, in substance, as follows:
During the period here involved, Mrs. Hazzard held a license as a practicing physician from the state of Washington, and practiced as such, principally by having her pa*354 tients fast for cure of their ailments. On February 26, 1911, Miss Williamson became a patient of Mrs. Hazzard, soon thereafter going to live with Mrs. Hazzard. After being treated by Mrs. Hazzard for some three weeks, Miss Williamson became so greatly reduced in physical and mental strength that she was confined to her bed with frequent periods of delirium. About this time, Mrs. Hazzard, by frequent visits and solicitations, had obtained the ascendency over Miss Williamson and came into control of her business affairs and personal conduct. Thereafter and prior to July 3, 1911, Mrs. Hazzard obtained possession of moneys in various sums belonging to Miss Williamson, aggregating $1,324. On May 26, 1911, Mrs. Hazzard filed, in the superior court for Kitsap county, her petition asking that she be appointed guardian of the person and estate of Miss Williamson, upon the ground that Miss Williamson was incapable of attending to her own affairs; and thereafter, on July 3, 1911, Mjrs. Hazzard procured from the superior court an order appointing her such guardian. This was done without the knowledge of Miss Williamson or any of her relatives or friends. On July 31, 1911, this appointment was by the court vacated and set aside, upon the ground that Miss Williamson was not incompetent or incapable of managing her own affairs, and Mrs. Hazzard was thereupon ordered forthwith to render a full account of her guardianship.. A few days before the entering of this order, Mrs. Hazzard had obtained from Miss Williamson the further sum of $250, and also a promissory note executed by Miss Williamson for the further sum of $250. This $500 Mrs. Hazzard claims was voluntarily given to her by Miss Williamson as the balance due for treatment and services rendered, and that such settlement was made looking to the formal discharge by the court of Mrs. Hazzard as guardian. The court evidently treated this settlement as having been procured through fraud and coercion and, therefore, of no binding force upon Miss Williamson.
The principal contention of counsel for appellant is that the superior court is without jurisdiction in the guardianship proceeding to compel her to account for moneys received from Miss Williamson before the commencement of the guardianship by formal appointment, since she is making claim to such sums as her own, claiming to have received them in payment of services, treatment and expenses incurred in Miss Williamson’s behalf. This contention is rested upon a general rule that the rights of strangers to an estate, claiming property adversely thereto,' cannot, over their obj ections, be determined in the probate proceeding in which the estate'
The duties of guardians of this nature, in so far as collecting and conserving the property of their wards is concerned, is prescribed by Rem. & Bal. Code, as follows:
“Sec. 1659. It shall be the duty of such guardian to collect and take into his possession the goods, chattels, moneys, effects, and other evidences of debt, and all writings touching the estate, real and personal, of the person under his guardianship.” (P. C. 409 §757).
“Sec. 1663. Every such guardian is authorized and required to collect all debts due to his ward, and give acquittances and discharges thereof, and adjust, settle, and pay all demands due and becoming due from his ward, so far as his estate and effects will extend.” (P. C. 409 § 765).
Manifestly, had Mrs. Hazzard, after her appointment as guardian, found any sums due Miss Williamson from other persons, it would have been her duty to collect the same. Of course, she cannot sue herself and thus enforce collection of such sums from herself by legal process. There is manifestly no way by which the amounts of any such sums due at the time of her appointment as guardian may be adjudicated while that appointment continues other than by her accounting in the court which appointed her guardian. The question of debts due from the ward to the guardian at the time of the commencement of the guardianship has arisen in suits upon bonds of guardians where it was sought to recover from guardians and their bondsmen debts due by guardians to their wards prior to appointment, upon the theory that they were required to account for such sums as guardian. In a controversy of this kind, in Mattoon v. Cowing, 13 Gray 387, the court held:
*358 “A guardian is responsible on his general bond, for money due from him to his ward at the time of his appointment, and for the rent of real estate occupied by the guardian before that time.”
In a similar controversy in Sargent v. Wallis, 67 Tex. 483, 3 S. W. 721, the court said:
“The bond of the guardian bound him, not only to account for and pay over such money or other effects of his ward as came into his hands, but also to faithfully discharge the duties of guardian of the estate of his ward according to law. The bonds were the property of his ward, and it was his duty continuously, from the time of his first qualification, to regain and maintain possession of them; and the fact that his own act, before he became the guardian, rendered such action necessary, in no way relieved him from that duty. For the faithful discharge of this duty the sureties on the last bond were as much bound as were those on the first. If the person who held the bonds through the hypothecation, or any other person, came into their possession through illegal means, with which the guardian was in no way connected, before his appointment or afterwards it certainly would have been his duty to recover them, as any other property belonging to the ward’s estate; and the fact that he was an actor in the illegal diverson certainly cannot relieve him or his sureties from liability for his failure of duty in this respect. ‘The guardian of the estate shall use due’ diligence to collect all claims or debts owing to the ward, and to recover possession of all property to which the ward has a title or claim; provided, there is a reasonable prospect of collecting such claim or debts, or of recovering such property; and, if he neglects to use such diligence, he and his sureties shall be liable for all damages occasioned by such neglect,’ — is the plain declaration of the statute. (Rev. Stat., art. 2546, 2616.)
“If we regard the guardian as having been a debtor to his ward’s estate, on account of what transpired before his appointment, the position of himself and sureties would be no better. If a person appointed executor, administrator, or guardian be a debtor, admittedly, at the time of his appointment, to the estate of which he is made the representative, having voluntarily assumed the trust, and his sureties hav*359 ing obligated themselves that he will faithfully execute it, and thus prevented the appointment of any other person, and being unable to sue himself, he must, in legal contemplation, be considered to have paid the debt to himself and to continuously hold the money, so long as his representative character continues, and his sureties, as well as himself, therefore liable for it. (Winship v. Bass, 12 Mass. 198; Leland v. Felton, 83 Mass. 533; Mattoon v. Cowing, 79 Mass. 387; Ipswich Manufacturing Co. v. Story, 46 Mass. 313; Stevens v. Gaylord, 11 Mass. 269; Avery v. Avery, 49 Ala. 193.) The indebtedness of the guardian would be assets, for which as other assets, he and his sureties must account.”
The following authorities lend support to these views: Todd v. Davenport, 22 S. C. 147; Matter of Noll, 10 App. Div. 356. 41 N. Y. Supp. 765; Johnson v. Hicks’ Guardian, 97 Ky. 116, 30 S. W. 3; McGill v. O’Connell, 33 N. J. Eq. 256.
We are of the opinion that the learned trial court had jurisdiction to compel Mrs. Hazzard to account for all sums she had received prior to the guardianship appointment as well as for all received thereafter, and that this included the power to cancel the note which was.given in the settlement between Miss Williamson and Mrs. Hazzard, which settlement the court held to be fraudulent and void as against Miss Williamson, and that the voluntary assumption of the guardianship trust by Mrs. Hazzard amounted to a voluntary submission to the court’s jurisdiction on her part in so far as it was necessary to acquire jurisdiction over her person.
It is further contended by counsel for appellant that the trial court erred in awarding judgment for $150 attorney’s fee against Mrs. Hazzard and in favor of Miss Williamson. As between those two, the settlement of this account by the court was clearly an adversary proceeding. Hence the court, in effect, awarded an attorney’s fee beyond the statutory fees allowed in that behalf in favor of the successful litigant. Our repeated decisions are to the effect that this cannot be done. There are no attorney’s fees as between litigants, under
In support of the contention that such attorney’s fees are allowable in controversies of this hind, counsel call our attention to Baker v. Seattle-Tacoma Power Co., 61 Wash. 578, 112 Pac. 647, Ann. Cas. 1912 C. 859. That was a suit brought by one stockholder of a corporation in behalf of himself and all other stockholders to recover property for the benefit of the corporation, being a suit necessitated by refusal of those in charge of the corporate affairs to seek such recovery. The litigation resulted in the recovery sought. The court awarded counsel fees in favor of the plaintiff against the corporation; not against the person from whom the recovery was had. This was not the awarding of attorney’s fees against the losing party in the case. The award was made in compliance with the general rule that equity may impose the burden and expense of necessary litigation, including counsel fees, upon the trust fund for the benefit of which the litigation is successfully maintained. Trustees v. Greenough, 105 U. S. 527. We are of the opinion that the awarding of judgment against Mrs. Hazzard for $150 as attorney’s fees in favor of Miss Williamson was erroneous.
We conclude that the decree must be affirmed in so far as it settles the accounts of Mrs. Hazzard as guardian of Miss
It is so ordered.
Crow, C. J., Chadwick, Gose, and Mount, JJ.,.concur.
