27 Ohio C.C. (n.s.) 60 | Ohio Ct. App. | 1917
Thomas Payne, the plaintiff in error, brought an action in the municipal court of the-city of Youngstown to recover from the defendant in error, Frank Rech, as guardian of his minor son, Leo Rech, for services claimed to have been rendered by said Payne, by agreement with said guardian, in connection with a suit for damages brought by the next friend of said minor for some personal injury claimed to have been sustained by-said minor in an accident on one of the numerous railroads, of said city of Youngstown. The petition in the court below alleges that Payne, by agreement with said guardian, assisted in the prosecution of said claim for damages in the way of making investigations, securing witnesses and
This cause was duly heard in the municipal court, and from its judgment an appeal was taken to the court of common pleas of Mahoning county, where a trial to a jury resulted in a verdict for plaintiff. A motion for a new trial was then made and sustained; application made and leave given to withdraw the answer, which was a general denial; and a demurrer filed to the petition, which was later sustained.
The plaintiff not desiring to plead further judgment was entered on the demurrer, and error is now prosecuted to this court, the parties here sustaining the same relation to each other as in the municipal court and the court of common pleas.
It will be observed that the issue raised here is whether a third person, contracting with a guardian of a minor, whereby services are rendered by such third person in behalf of the estate of such ward, can maintain an action against such guardian in his trust capacity, or whether suit can be maintained only against the guardian personally.
Judge Rockel, in his Ohio Probate Practice, Vol. 2, Sec. 1402, under the head of “Employment of attorneys, agents, etc.,” observes in part, as follows:
“The guardian likewise has a right to employ agents wherever necessary, but allowance for these matters, rests largely if not entirely in the discretion of the Probate Court.”
Judge Woerner, in his American Law of Guardianship, at page 185, pertinently observes as follows: “As a general proposition, guardians can
The foregoing is supported in principle by 1 Elliott on Contracts, Sections 522 to 526, inclusive. The case of Hurd et al. v. W. & L. E. Ry. Co., 4 N. P., 404, is in point with the case at bar. In that case it was held that an action could not be maintained for attorney fees against the administrator of an estate, or the guardian of minor wards, heirs at law of such estate, for legal services rendered in behalf of such estate. The above doctrine was affirmed in Connell v. Brumback et al., 18 C. C., 502, the first proposition of the syllabus of which is as follows: “There is no cause of action that can be maintained against either of these representative parties, either the administratrix or the guardian, in their representative capacities.” It is well settled in this jurisdiction that a suit cannot be maintained against an executor or an administrator for services rendered by an attorney in behalf of such estate. Thomas, Admx., v. Moore, etc., 52 Ohio St., 200, 201, 205; 1 Rockel’s Ohio Probate Practice, Section 507; McBride & McBride v. Brucker, Admr., 5 C. C., 12, 3 C. D., 7; Mellen v. West, Admr., etc., 5 C. C., 89, 3 C. D., 46;
It is urged in argument, however, that such action may be maintained under favor of paragraph 5 of Section 10933, General Code, which reads as follows:
“To pay all just debts due from such ward out of the estate in his hands, and collect all debts due to the ward; in case of doubtful debts, to compound them to appear for and defend, or cause to be defended, all suits against his ward.”
How less could a guardian’s duties be defined and still permit him to serve in a trust capacity for a minor, so frequently incapable of representing or understanding his own interests? The very nature of the relation between guardian and ward suggests the impropriety of permitting the guardian by contract to bind the ward’s estate in such manner as to render it liable to execution. The above section is not susceptible of such interpretation as to permit the maintenance of a suit against a guardian in his representative capacity.
The cases of Kingsbury v. Powers, 131 Ill., 182, 22 N. E. Rep., 479; Taylor v. Bemiss, 110 U. S., 42; In re Hynes, 105 N, Y., 560, 12 N. E. Rep., 60; Fillmore v. Wells, 10 Colo., 228, 15 Pac. Rep., 343; Smith v. Bean, 8 N. H., 15, and Mathes v. Bennett, Gdn., 21 N. H., 204, are cited by plaintiff in error as sustaining his right to recover from the guardian in his representative capacity, but a careful examination of said cases discloses that they pass only upon the right of a guardian to employ counsel or incur other expense in the interest of a ward’s
Judgment affirmed.