In re Estate of Kincaid

TEMPLE, J.

Alexander Gordon was appointed guardian of Archer Kincaid, a minor, December 23, 1882. Kincaid became of age May 24,1890. The guardian upon assuming the duties of his trust received for his ward one thousand dollars in cash, and no other property came to his hands during the minority of his ward. This money was entirely consumed in the support and education of the ward before he reached majority, therefore, when the guardianship ceased Gordon had in his possession no estate whatever of the ward.

The guardian had, however, at the request of his ward, and out of friendship to him, given him educational advantages far beyond what would have been justified by the means of the ward in his hands. And after Kincaid became of age Mr. Gordon continued to advance money for that purpose; Gordon paid his expenses at the University and at the Hastings Law College until his former ward was admitted to practice law in all the courts of the state.

In 1894, and long after the ward reached his majority, a decree of distribution was made in the estate of Kincaid’s mother, of which estate Gordon had charge as executor, by which nearly five hundred dollars in money was distributed to Kincaid. Mr. Gordon retained this amount as a payment upon the advancements made by him, but even after this credit there was still due Mr. Gordon for advances made over eleven hundred dollars. Evidently to prevent a plea of the statute of limitations, Gordon on the fifteenth day of January, 1895, presented his final account as guardian for settlement in the probate court, and asked for a decree adjudging that.his former ward wasindebted to him in the sum of eleven hundred and fifteen dollars and eighty-one cents. In the probate court such a decree was made, and it was also found that the money paid and advanced by Gordon since the ward reached his majority was advanced in his capacity as guardian; and no relation other than that of guardian and ward, with respect to the items of the account, ever existed between Gordon and Kincaid.

1. The findings are contradictory. When it was found that the ward reached his majority in 1890, it was thereby determined that the guardianship then ceased. ' (Code Civ. Proc., sec. 1753.) True, the probate court retained jurisdiction, to compel an accounting, and. no doubt retained jurisdiction for that purpose at the time this accounting was had. If such accounting has been delayed the court had undoubted jurisdiction to pass upon all questions as to the care of the estate, which the guardian received as guardian during the wardship down to the accounting; and inasmuch as any money or property received from the guardian by the former ward, since reaching majority, was so much property delivered, the court would also allow credit for all such sums or property. (Crowell’s Appeal, 2 Watts, 295; Gilbert v. Guptill, 34 Ill. 112.)

There is some difference as to the extent to which courts will consider post-majority transactions in the settlement of the accounts of a former guardian. The difference probably originated from the fact that the accounts were generally settled by courts of equity, whose jurisdiction was not so limited. In this case we are relieved from any embarrassment upon the subject, because it is conceded that at the time the ward reached his majority there was no estate belonging to the ward in the hands of the guardian. Under such circumstances an agreement between the former ward and his late guardian that the guardianship should continue, and that as guardian the late guardian would care for and educate the ward is only an agreement for advancements. Had there been an estate the jurisdiction of the court would only have continued as to the estate and.to enforcing an accounting as to such estate. When the guardian assumed his office he contracted .not only to manage the estate according to law and for the best interest of the ward, but also, that at the termination of his trust he would account for the property, estate and moneys of the ward in his hands, and would pay over ancT deliver such as remained to the person entitled thereto. This is the account which the probate court has jurisdiction to determine. Ho jurisdiction is given to ascertain a balance against a former ward, except as that will tend to show what the guardian must pay or deliver to his former ward. It is in the nature of a proceeding in rem, and the estate is the res, and, after majority, the only matter of which the court has jurisdiction.

It is thought that Kincaid is guilty of ingratitude and dishonesty because he now refuses to acknowledge his indebtedness to Gordon, and to provide for payment out of an estate which was never in the hands of his guardian. But all this is based wholly upon the proposition that Kincaid requested the advancement after majority. Eliminate these promises and the matter will present a different appearance. Yet these facts show that it is a matter over which a guardian's court has no jurisdiction.

As the accounting is in the nature of a proceeding in rem, a finding that the former ward was indebted to the former, guardian would have no force or effect in an independent proceeding. It could affect the estate only, and would not even he evidence to charge the former ward in another proceeding. The decree binds neither ward nor guardian, except as to the estate which the guardian received as guardian. This being so, I do not see that the court in this proceeding has any concern with the other questions raised. As to the charge of interest on the one thousand dollars which the guardian did receive and which he disbursed, there is nothing to show error.

That portion of the decree which determines that the guardian has properly disbursed all the estate in his hands as guardian is Affirmed; that portion which adjudges and determines that his former ward is indebted to Gordon is reversed.

Harrison, J., Garoutte, J., and Henshaw, J., concurred.