189 A. 753 | Pa. Super. Ct. | 1936
Argued November 12, 1936. Maria T. Voshake presented a petition to the Court of Common Pleas of Philadelphia County praying that the court adjudge her brother, Francis A. Voshake, a weak-minded person and appoint a guardian for his estate. After hearing, the court below found Francis A. Voshake to be a weak-minded person and unable to attend to matters connected with his estate. Counsel for petitioner suggested that the court appoint the Fidelity-Philadelphia Trust Company and himself as guardians. The court below refused to appoint counsel as one of the guardians, and appointed the Fidelity-Philadelphia Trust Company and David Bortin, Esq. The final decree provided "that the Fidelity-Philadelphia Trust Company and David Bortin, Esq., be appointed as Guardians of the Estate of the said Francis A. Voshake, a weak-minded person, the corporate guardian to enter its own bond for both in the sum of $150,000.00 and handle all funds."
Petitioner filed exceptions to the decree. She also filed a petition to amend the decree by vacating the appointments of the Fidelity-Philadelphia Trust Company and David Bortin, Esq., as guardians of the estate of Francis A. Voshake, and appointing Walter T. Fahy, Esq., as guardian for his estate. The petition was dismissed, and petitioner appealed.
Appellant's argument sets forth that her petition presented to the court below asked that its decree be amended by striking out the appointment of Mr. Bortin, as guardian, and substituting the appointment of Mr. Fahy, but retaining the appointment of the Fidelity-Philadelphia Trust Company. Although there is a discrepancy between the petition, as we find it in the record, and the argument as presented, we conclude that the main question raised is whether or not the court below abused its discretion in refusing to amend its decree by substituting Walter T. Fahy, Esq., *101 as one of the guardians, in the place of David Bortin, Esq. Appellant contends that the court below abused its discretion in ignoring the request of the appellant, who is the sister and next of kin of the incompetent, to appoint Walter T. Fahy, Esq., a guardian with the Fidelity-Philadelphia Trust Company, and in appointing with the trust company another attorney who is a stranger to her as well as to her brother.
The appointment of the Fidelity-Philadelphia Trust Company and David Bortin, Esq., as guardians, was made under the provisions of the Act of May 28, 1907, P.L. 292, as amended (
Naturally, the courts, in the administration of such estates, desire the fullest information and aid in discharging their exacting duties. Suggestions relative to whom the parties desire as guardians may be helpful, and should be considered; but to hold that such suggestions are binding upon the court in all cases would *102 be to remove the duty of appointment, with its attendant responsibility, from the court, where the statute imposes it, and entrust it to the petitioners in these matters. Although, in a particular case, the court might accept petitioner's nominee with benefit to all concerned, nevertheless the dangers of a rule which would enforce that procedure, in every instance, are obvious. The court should not knowingly appoint one wholly distasteful to those interested; neither should it select as a guardian any one who has, or may have, an interest adverse to that of the incompetent, and counsel for one who may have an adverse interest should not be accepted.
The appointment of Mr. Fahy in the place of Mr. Bortin is not sought here because of any adverse interest on the part of the latter, or because of any previous hostility existing between him and the appellant or the incompetent, or because of any existing differences between the parties. See Hill v. Whiteside,
That part of the decree of the court below which provides that the Fidelity-Philadelphia Trust Company shall "handle all funds" is without statutory support. Section 20 of the Act of June 13, 1836, P.L. 589 (50 P. S. § 753), relative to the estates of lunatics, and which applies with equal force to the estates of feeble-minded or weak-minded persons, as provided in section 6 of the Act of 1907 (50 P. S. § 961), provides, in part, as follows: "The committee of the estate of every person found to be a lunatic or habitual drunkard, as aforesaid, shall have the management of the real and personal estate of such person. . . . . ." The existence of an estate is the basis for the appointment of a guardian, under the Act of 1907, and, when properly qualified, the guardian has the management of the real and personal estate of the incompetent, and, the same as a committee of a lunatic, is entrusted with the management of the entire estate. See Wheatland's Appeal,
A committee of a lunatic, or a guardian of a feebleminded person, is a mere bailiff of the court making the appointment. "A bailiff is defined to be one who has charge of lands, goods and chattels of another to make the best profit for the owner, and to have his reasonable charges and expenses deducted; and is accountable for the profits he reasonably might have made. Co. Litt. 172; 3 Penn. Bl. 46; 1 Dall. 340; 1 Bac. Ab. 17, 19": *104 Bredin v. Kingland, 4 Watts 420, 422. A committee may consist of one or more persons having the management and control of the real and personal estate of the lunatic. Act of June 13, 1836, P.L. 589, § 14 (50 P. S. § 731). Where the court appoints two or more guardians of the estate of a feeble-minded person, they have charge of the real and personal estate of such person and the management of the entire estate in their joint capacity. They are generally regarded in law as one person; they possess a joint authority. See Hall v. Boyd,
That portion of the decree which reads "and handle all funds" is stricken out.
The decree, as modified, is affirmed.
