DocketNumber: No. 12598
Citation Numbers: 109 Okla. 252
Judges: Jones
Filed Date: 3/17/1925
Status: Precedential
Modified Date: 1/2/2022
Opinion by
This case was originally iinlstituted in the counity court -of Creek county by Lusanna Brink, an incompetent, by Katie Watashe, nee Perryman, her daughter and next friend. The petitioner asks that the said Lusanna Brink be restored to competency and that, her guardian, C. C. Taylor, be removed, alleging that said guardian had mismanaged the estate, and had failed to file an Inventory and report as required by law. On the trial of the "case the effort to restore said Lusanna Brink to competency was abandoned and after the hearing of same the! county court found that (lie said C. 0. Taylor, as guardian, had failed
Section 1443, Comp. Stat. 1921, provided that the guardian shall make an inventory of all the estate, real and personal, of his ward that comes to his possession or knowledge, and return same within such time as the judge may order, and further provides:
“To render an account under oath, of the property, estate and monies of the ward in his hands, and all proceeds or interest derived therefrom, and of the management and disposition of same, within three months after his appointment, and at such other time as the court directs,’’ etc.
And section 1449 provides the method of appointment of guardians for all persons mentally incompetent; and section 1451 makes the law applicable to wards and guardians applicable to incompetent wards the same as though they were minors. And section 1454, and the sections of our statutes immediately preceding same, provides for the manner in which guardians shall conduct the affairs of their wards. Section 1455 provides that:
“Every guardian must manage .the estate of his ward frugally and without waste, and apply the income! and profits thereof as far as may be necessary for the comfortable and suitable maintenance and support of the ward,” etc.
Section, 1460 provides for the filing of an, inventory of the estate of his ward within three months of his appointment, and annually thereafter, and section 1461 provides that the guardian must, within the expiration of a year from the time of his appointment, and as often thereafter as may be required, present his accounts to the county court for settlement and allowance, and the law further provides for the removal of a guardian for abuse of trusts or for continued failure to perform his duty, and in view of the fact that, in this ease, the guardian had complied with none of these statutory provisions, and had dissipated about fifty per cent, of the funds received by him from his ward’s estate as compensation for himself, and attorneys fee, we think justifies the judgment of the county court in removing said guardian, and that under such state of facts the district court was in error in vacating the judgment of the county court, and in sustaining the contention made by the guardian, O. O. Taylor.
“The removal of a guardian for cause, under said section (referring to section 1491, Comp. Stat. 1921), and the appointment of a successor, rest largely in thei sound discretion of the county court, and, unless this discretion is abused, its action will not be disturbed.”
It is the duty of courts to guard, with zealous care, the interest of minors and incompetents, and guardianship should not he sought for gain, and while) guardians should be, and are, entitled to compensation for their services, it should only be such compensation as is commensurate with the services actually rendered, and this same rule should apply to attorneys who accept employment in guardianship proceedings. A different rule applies than that which properly applies to transactions between individuals possessing no disqualifications: men of mature years and of sound minds are permitted and authorized to deal at arms length, and to enter into such contracts as they deem proper, and when en-ered into, in the absence of fraud or mistake, the terms and conditions of the contract are enforceable and should be respected by all parties concerned, but in dealing with minors and incompetent wards, no disposition to overreach or unjustly deprive the ward of any of its rights should be recognized, and contracts and transactions affecting the rights of minors and incompetents which are unfair and unjust have no standing in the courts of this country, and when called to the attention of the courts should be disapproved.
In this case the guardian had not filed an inventory and report as required by law, and in the judgment of this court had not frugally managed, the estate of his ward, had expended nearly one-third of the funds received for attorney’s fee, admits that he overpaid the attorney $53.34, and in appellee's brief the suggestion is miade that the court could require him to reimburse the estate, but men should not wait for court orders, and the institution of lawsuits before discharging their duties which are clear and unquestionable), and especially is this true in dealing with minors and incompetents, and where fiduciary relations exist, such as exist between guardians and their wards, such conduct, a>s is disclosed by the record in this case, is too prevalent in this day and agd, and good men may sometimes indulge in such, but courts should never condone it. We think there was ampl^ evidence to sustain and justify the judgment of the county court in removing the guardian, , and we therefore recommend that the judgment of the district court be reversed, and the judgment of the county court reinstated.
By the Court: It is s'o ordered.