Summary
holding that a probate court could determine the value of services rendered by a guardian during the ward's lifetime, whether the application was made before or after the ward's death
Summary of this case from State ex Rel. Hards v. KlammerOpinion
No. 119454.
1948-02-16
In re SCHUENEMAN'S ESTATE.
John J. Cooney, of Cincinnati, for guardian of estate of Alfred F. Schueneman, incompetent.
Proceeding in the matter of the estate of Alfred F. Schueneman, a lunatic, wherein Leonora Lemmel, guardian of the person and estate of the lunatic, applied for allowance of fees for services rendered. The application was opposed by Esther Schueneman Sullivan, who filed exceptions.
Exceptions overruled.John J. Cooney, of Cincinnati, for guardian of estate of Alfred F. Schueneman, incompetent.
DAVIES, Judge.
This matter came before the Court upon the exceptions of Esther Schueneman Sullivan to the allowance of fees for services rendered by Leonora Lemmel, guardian of the person and estate of Alfred F. Schueneman, incompetent, and to the allowance of fees for services rendered by counsel for said guardian.
It is admitted that on the 29th day of July, 1932, the Probate Court of Hamilton County, Ohio, appointed Leonora Lemmel guardian of the peraon and estate of Alfred F. Schueneman, an incompetent, and that she selected counsel to represent her as said guardian; that since that date both the guardian and attorney have rendered valuable services for said incompetent; that the incompetent died on the 27th day of October, 1947; and that said guardian and attorney are entitled to fees for their services.
The exceptor, Esther Schueneman Sullivan, the spouse relict of the deceased ward, while admitting that valuable services have been rendered, claims that since the applications of the guardian and her attorney for fees were not presented to the Court, and the reasonable value of those fees determined and allowed by the Court prior to October 27, 1947, the date of the ward's decease, their applications for fees should be presented to the administrator of the deceased ward, and not to the guardian, the exceptor claiming that the death of the ward terminated the guardianship, and the guardian, from the date of the death of the ward, had no further authority or control over the ward's estate to pay fees to the guardian and her attorney.
These exceptions present squarely to the Court the question as to whether a guardian and his attorney, after the date of the death of his ward, can present to the Probate Court in which he and his attorney were appointed a claim for services rendered by him as guardian, and for legal services performed by his attorney, prior to the death of the ward, and receive authorization from the Court to make payments out of the funds in his hands as guardian for said services, for which payments an accounting would be made in his final account as guardian, or whether it is necessary, under these circumstances, for the guardian and his attorney to present their claims to the personal representative of the deceased ward, rather than to the guardian of said ward.
There is an erroneous idea that a guardian cannot pay himself and his attorney by authority of Court for unpaid services rendered by him and his attorney during the lifetime of his ward unless an application is presented and approval of Court secured before the death of the ward. This assumption is gained from the language that ‘the death of the ward terminates the guardianship, and the guardian has no further authority or control over the personal estate remaining in his hands except to safely keep and deliver the same to the personal representative,’ found in the case of Sommers v. Boyd, Treas., 48 Ohio St. 648, 29 N.E. 497, and from language contained in other cases to which reference will hereinafter be made.
In the Sommers case, the Court considered a case in which a claim was made for a payment of taxes which came due after the death of the ward, but before the filing of the final account by the guardian. The Court in that case held that the claim was improperly presented to the guardian and that it should have been presented to the administrator of the deceased ward. The Court laid down the rule that the death of the ward does terminate the guardianship, and the guardian has no further authority or control over the personal estate remaining in his hands except to safely keep and deliver same to the personal representative, and that when administration is granted upon an estate of a deceased ward, the assets vest immediately in the administrator, whose title, by relation, dates back to the time of the decease, and thereafter, he, and not the guardian, is the proper person to list the personal estate for taxation. The Court arrived at this conclusion because the guardian did not list the property in his hands for taxation until after the death of the ward.
In the case of Gorman v. Taylor, 43 Ohio St. 86, 1 N.E. 227, it was held that the Probate Court has exclusive jurisdiction in the settlement of guardians' accounts, following the case of Newton v. Hammond, 38 Ohio St. 430.
In Scattergood v. Ingram, 86 Ohio St. 76, 98 N.E. 923, a daughter was appointed guardian of the person and estate of her imbecile mother and continued in the discharge of the duties as such guardian until the death of the ward in October, 1907. Thereafter, she filed in the Probate Court her account as such guardian, and asked for the allowance of certain items for services and expenses in caring for the ward who had lived with the guardian as a member of her household. Exceptions were filed to the account of the guardian on the ground that the guardian had no express contract with her mother for her care and for the services rendered, and that no claim had been presented to the personal representatives of the mother after her death. The Court in considering these exceptions reasoned that it would be absurd ‘to require a presentation of the claim to the administrators of the ward, since, being her personal representatives, they are concerned only with claims against her’, and decided that both expenditures incurred by the guardian and compensation to be paid to her under the law should be determined by the Court settling the guardian's account. In Syllabus 2 of the Scattergood case, the Court held that ‘in such case allowance for services and compensation is by section 10953, General Code (now section 10506-52, G.C. and section 10510-45, G.C.), to be determined by the court settling the guardian's account, and, it not being a personal claim against the ward, it need not in case of his decease be presented to his personal representatives.’
In Simpson v. Holmes, Adm'r, 106 Ohio St., 437, 140 N.E. 395, the Court had before it a case in which the guardian of a ward during the lifetime of the ward entered into a contract with a third person for that third person to furnish necessaries for the ward. When the ward died the guardian had not paid all of the money which was due that third person for furnishing the necessaries to the ward, and the third person presented a claim against the administrator of the ward for payment of the bill. The Court held that the claim could properly be presented to the administrator, because the claim of the third person was for necessaries, that the ward himself was liable personally for payment of claims for necessaries furnished him, and since that was true, the claim could be presented to the personal representative of the ward after the decease of the ward. Judge Wanamaker, who wrote the opinion in the Simpson case, in the very first sentence of his opinion stated that ‘The sole question in this case is whether or not plaintiffs below had a cause of action against the administrator upon the contract made between them and the guardian for board, nursing, washing, care, attention, etc., furnished Lindley Gregg in his lifetime, or whether the rights of the plaintiffs should have been worked out in the probate court as against the guardian.’ Later in his opinion, Judge Wanamaker, considering whether it was necessary to present the claim of the guardian, after the death of the ward, to the Probate Court for consideration in the guardianship estate, or to present the claim to the personal representative of the deceased ward, stated that ‘Remedial rights under the common law and statutes should be liberally construed. To defeat a right to recover, upon a mere legal quibble as to whether the cause of action should be prosecuted through or against a guardian or administrator, after the death of the ward, would be merely an impeachment of the efficiency of courts of law to administer justice.’ The Judge continued that ‘Technically, there is no doubt a number of decisions that hold or tend to hold that the necessaries of life furnished a ward are primarily the obligation of his guardian; and yet, with equal or even greater consistency, it must be held that such service rendered a ward, suited to his condition and necessities, is equally the obligation of the ward himself.’
A careful study of the Simpson case will indicate that the Court, in making its decision, merely held that, under the facts of that particular case, since necessaries had been furnished the ward during his lifetime, the ward, although under legal disability, was responsible personally for payment for said necessaries, and, being personally responsible for payment of the same, the person furnishing those necessaries during the lifetime of the ward could recover from the administrator of the deceased ward the reasonable value of said necessaries. The Court did not hold that if the claim in that case had not been for necessaries for which the ward was personally responsible, the claim could have been presented against the administrator of the deceased ward; nor did the Court hold that, if the claim for necessaries had been presented in the guardianship for necessaries furnished during the lifetime of the ward, a claim for the reasonable value of said services could not be made in the guardianship and payment be made out of the funds in the guardianship after the death of the ward.
In the case of Winjum v. Jesten, 191 Minn. 294, 253 N.W. 881, the Supreme Court of Minnesota considered a case involving the question as to whether or not a guardian, after the decease of his ward, can present his claim for services performed during the life of his ward in the guardianship in the Probate Court which appointed him, or whether it is necessary for him to present his claim to the administrator of the deceased ward appointed by the Probate Court of another county. The Court decided that the claim was properly presented in the guardianship, holding as follows:
‘In hearing and settling the final account, the probate court passes upon the amount and validity of the expenses paid or incurred by the guardian and determines what compensation the guardian is to receive for his services. It determines any and all matters incident to the account. The court then determines the amount of money or property, or both, remaining in the hands of the guardian after the payment of the allowed expenses and fees and orders the guardian to pay or deliver the remaining money or property, or both, to the representative of the deceased ward's estate.
‘When a ward dies, his property, in the hands of his guardian, passes to the representative of the ward's estate, if one is appointed, but the guardian has the right to retain possession of the property for the time necessary to settle his final account and to have the probate court determine the amount of money or property, or both, remaining to be paid and delivered to the representative of the ward's estate. * * *
‘The representative of the deceased ward's estate had no greater right than the ward would have had if living at the time of the final settlement of the guardian's account, and could call upon the plaintiff, the administrator of the guardian's estate, for payment only of the amount found by the probate court as remaining in the hands of the guardian on the final accounting.’
In the instant case being considered by this Court, we are likewise presented with the question as to whether or not a guardian and her attorney, after the death of the ward, can present a claim and be paid in the guardianship for personal services rendered by them to an incompetent ward during the lifetime of that ward.
We believe that the answer should be in the affirmative, and is clearly authorized by the aforementioned cases, and under specific laws passed by our Legislature. Section 10507-2, G. C. provides that when found necessary the Probate Court of any county shall appoint a guardian of the person or of the estate or of both of a minor, incompetent, habitual drunkard, idiot, imbecile, or lunatic. Sections 10507-15, 10507-16, G. C. set forth the duties of the guardian of the estate and of the person of such wards. Section 10507-60 et seq., G. C. provides how a guardianship shall be terminated. Finally, Section 10506-52, G. C. provides that ‘when compensation is not otherwise fixed by law, the probate court shall make such allowance to fiduciaries for their services and expenses in executing their trust as it deems proper. Such compensation shall be charged to income or principal, or part to each, as the court may allow, by rule or otherwise; * * *.’ The Legislature, in providing that the Probate Court shall make such allowance to fiduciaries for their services and expenses in executing their trust as it deems proper, certainly did not intend that the Court, when a fiduciary has rendered services and incurred expenses in the execution of a trust for an incompetent ward, cannot approve such fiduciary's claim for services and expenses unless presented prior to the death of the ward. The services of the guardian of a ward are not fully executed until the guardian has filed his final account, with proper approval of the Court, and until the assets of the ward are paid over to the personal representative of the deceased ward, or other disposition made of the assets by order of Court. It is impractical and unnecessary, and perhaps improper, under the Ohio law, to require a guardian and his attorney to present their claims to the personal representative of a deceased ward for unpaid services and expenses rendered either before or after the death of the ward in the execution of their duties in a guardianship of said ward. As contemplated by the Legislature, and as specifically provided under Section 10506-52, G. C., the Probate Court which appointed the guardian, and under whose supervision the guardian and his attorney executed their trust, is in a better position to make an allowance to fiduciaries for their services and expenses than the Court which appoints the personal representative of the deceased ward. It is not unusual that the funds in a guardianship account would amount to less than $1,000.00, in which event, under Section 10509-5, G. C., the Court may order the estate relieved from administration, which obviates the necessity and expense of appointing an administrator. Other situations frequently arise in which the personal representative of a deceased ward would be appointed in a forum other than in the county in which the guardianship was executed. The Legislature, therefore, wisely provided that the Probate Court in which the guardian and his attorney were appointed, and under whose supervision their services were executed, shall ‘when compensation is not otherwise fixed by law,’ make such allowance to the fiduciaries for their services and expenses in executing their trust as it deems proper. Compensation for guardians is not otherwise fixed by law, as is true for executors and administrators under the provisions of Section 10509-192, G. C.
We conclude that when a guardian and his attorney perform services and incur expenses for a ward, the law of Ohio (G. C. 10506-52) specifically confers jurisdiction on the Probate Court appointing such guardian and his attorney to determine the value of such services and expenses rendered during the lifetime of the ward, whether the application made to the Court to determine the reasonable value of said services and expenses is made by the guardian and his attorney before or after the death of the ward.
For the aforementioned reasons, the exceptions of Esther Schueneman Sullivan will be overruled.