Creagh v. Tunstall , 98 Ala. 249 ( 1893 )

STONE, C. J.

It is certainly true that the guardian of a person non compos mentis, is charged with the duty of looking after the wants and comforts of his ward. On him rests the duty of providing for the latter’s maintenance, including suitable subsistence, clothing, medical attention in sickness, &c.; but the extent of such provision is, and must be left largely to the discretion of the guardian, guaged by the financial condition of the estate of the ward. “The paramount consideration in regard to all expenditures is the comfort and ease of tbe lunatic bimself, and tbis is always superior to tbe rights of those who are entitled to the estate after tbe lunatic’s death.” — 11 Am. & Eng. Encyc. of Law, 122.

Tbe discretion of tbe guardian, however, must not be arbitrarily or unreasonably exercised. Tbe comfort and well-being of tbe ward are tbe ends to be accomplished; but tbe condition of tbe ward’s estate must be steadily kept in view. Should tbe guardian be derelict in duty, and fail to provide suitably for bis ward, taking into account tbe means at bis disposal, there is in law a clear remedy for such abuse, either by compelling performance of tbe duty or by removing tbe unfaithful or incompetent trustee. And there is another remedy which tbe law furnishes ex necesítate. A neglected ward might be brought to want and suffering before judicial relief could be successfully invoked. In such case a stranger could supply pressing, present wants, and have tbe same made a charge against the trust fund in tbe bands of tbe guardian. But tbis principle finds neither justification nor field of operation, unless the guardian neglects or refuses to supply tbe ward with necessaries, suitable to the latter’s estate and condition.

In tbe present case it is not charged that tbe guardian bad requested Mrs. Creagli, tbe petitioner, to supply bis ward, or that be bad been derelict in tbe performance of tbis duty. Tbe inference from tbe averments of tbe petition is, that the ward, of bis own mere will, had wandered to her home, and was there supported and entertained by her. From these unaided facts tbe law does not raise a promise on the part of tbe guardian that he will pay her for such supplies. There is neither contractual nor legal privity between them. Prima facie tbe guardian alone is authorized to select tbe ward’s abiding place, and to supply bis wants, and tbe present record fails to show bis omission to do so. We concur with tbe chancellor in bolding that tbe petition fails to make a case authorizing relief.—Call v. Ward, 4 Watts & Serg. 118; Bredin v. Dwen, 2 Watts, 95; Barnum v. Frost, 17 Grat. 398; Tucker v. McKee, 1 Bailey, S. C. 344; Nicholson v. Spencer, 11 Ga. 607; Gwaltney v. Cannon, 31 Ind. 227.

Affirmed.