Opinion
13157
May 26, 1931.
Before SEASE, J., Union, July, 1930. Affirmed.
Application for discharge of C.C. Sartor as guardian for certain minors. From an order of accounting thereon the minors and the surety for the guardian appeal.
The report of the Probate Judge and the order of Judge Sease affirming the report of the Probate Judge were as follows:
Hon. A.G. Kennedy, Probate Judge, made the following report:
Mr. C.C. Sartor, as guardian for his three children, only one of whom had reached his maturity before the hearing herein, seeks to account to this Court covering his acts and doings as such guardian.
The guardian herein has offered a proposed return in which he says that he and his surety are liable for the full amount of the minors' estate, less bond premium and guardian commissions. He has made no claim for any expenditures he has previously made in behalf of his wards, and claims that he and his surety are liable to his wards for said amounts. The surety has come in under its right according to law and filed a return for the guardian and asked the Court to allow the guardian to make charges for the support and maintenance by the guardian of his wards, who were children of the said guardian, and has offered evidence to show that the said guardian was in financial straits during the time, and was unable from his own income and resources to support his said children-wards, without the use of his guardianship fund in his hands and asked that proper allowance be made to the guardian for such support and that his surety be relieved from liability on the guardianship bond for all credits the guardian might be justly entitled to by reason of the expenditures he has made out of the guardianship funds in his hands for the support of the wards.
Mr. C.C. Sartor, guardian, in his testimony at the hearing before the Probate Court did not produce any books or accounts or records showing receipts and disbursements of the guardianship funds. His statements were more or less in generalities and there were no records in the Probate Court showing any attempt of the guardian to make returns.
Mr. Sartor testified, and the record shows, that he was appointed guardian for the minors herein above June, 1919. He further testified that he farmed during the year 1920, and since, and that farming was his sole occupation and source of income. The testimony on page 8 is as follows:
"Q. And, Mr. Sartor, since about — since 1920, farming has been a losing game in this part of the country, hasn't it? A. I have found it so.
"Q. In other words no farmers have made any money? A. I don't know, some claim they do and some say they don't, for my part I have not made any.
"Q. And as a result of that you had no — that was your sole income, was it? A. Yes, sir.
"Q. And as a result of that you had no money from your business with which to support your children? A. My sole incomes, in 1918 and part of 1919 I worked here in Union on job work.
"Q. But since 1920? A. Since 1920 farming only.
"Q. And it has been a losing proposition? A. Yes, sir.
"Q. And as a result of it you have had no money from your farming operations to support your children, have you? A. No, sir.
"Q. And then whatever you did have in land and in other property went to support yourself and children, any equity you had? A. Went for my support and part of the children's support, because these boys have supported themselves some here lately."
The Fidelity Deposit Company of Maryland, surety for the guardian herein, offered testimony showing the cost of maintaining minor children in the station of life similar to that maintained by the Sartor children, and the attorney for the minors herein also introduced evidence showing cost of maintaining minor children in the manner said wards were supported and maintained.
On pages 24 and 25 of the testimony taken at the second hearing, Mr. Sartor testified, relative to the costs of supporting his children the time he supported same, as follows:
"Q. Mr. Sartor, in your opinion, what would be reasonable support or charge for each of your three children, including what they eat, what they wear, their school books and medical attention? Living in the country? Deducting any work they do? A. I never kept any account of it.
"Q. Just an estimate? The oldest boy would have been any expense only 6 years, 8 years for the second boy, and about 10 years for the little girl, so just strike an average for cash outlay — what would be a fair average? if you spent $100.00 that would be unreasonable, and if we say $4.00 a month, that would be unreasonable — I just want a fair estimate? A. As I believe $7.50 to $8.00 a month."
It is undisputed that the amount of funds turned over to said guardian for each minor as of June 23, 1919, was $571.04, and that interest on same at the rate of 7 per cent. per annum to date of hearing, August 8, 1929, amounted to $404.83, and that bond premiums paid on each amounted to $36.66, and guardian's commission on each $14.27, which leaves, according to guardian's contention, an amount of $924.94 due each of the wards. Of course, the surety company denies that this return is correct, and, as stated before, claims allowance for maintenance of said wards, which should be allowed the guardian in an amount that would reduce the liability of the guardian and the surety to practically nothing. The Court is not unmindful of the fact that it has a peculiar duty to protect the interest of minors, and although it appears that the figures placed by the guardian as the cost of support and maintenance of the wards as $7.50 per month, to be very low, the Court will take that figure as a proper allowance in this case for the guardian for the support of his wards during the time which he testified to support them, namely; the oldest child, Milton H. Sartor, for a period of about six years, and the next oldest child, Thos. B. Sartor, for a period of about eight years, and the youngest child, Mary C. Sartor, for about ten years. Taking those figures as being a proper amount to be allowed, then the amount of credit the guardian would be entitled to under such allowance for the support and maintenance of his wards-children, would be as follows: Milton H. Sartor, $540.00, Thomas B. Sartor, $720.00 and Mary C. Sartor, $900.00, leaving as the amounts due by the guardian to Milton H. Sartor, $384.94, to Thomas B. Sartor, $202.94, and Mary C. Sartor, $24.94. These computations were made as of August 8, 1929, and the said amount should bear interest at 7 per cent. from that date until date of payment.
The above allowances to the guardian were made at the solicitation and instance of the surety and not of the guardian. The guardian stated that he made no claims for the support of his minor children and by his testimony and conduct at the hearings it appeared evident to the Court that the guardian was very solicitous of the interest of his wards and was not in sympathy with his surety in making this return. The testimony at the hearing convinced the Court that Mr. Sartor had no income other than that derived from his farming, since the year 1920, and that as he made no profits on his farms and had not sufficient personal funds to support his minor children, he was justified in using their funds for their maintenance, support, and education, although there appears no Court order directing him to do that. Any Court of competent jurisdiction would have under such circumstances undoubtedly authorized the guardian to expend the corpus of his wards' estate for their support, maintenance, and education. Failure to obtain proper Court orders were irregularities, but the Court does not see any evidence of Mr. Sartor having acted in bad faith towards his children, or having squandered or wasted their guardianship funds. Misfortune seemed to have been the handmaiden that constantly walked by his side during these years; he suffered one disaster after another. His home was burned; his barn was burned; and through it all he maintained a home for his minor children and gave them advantages of schooling during these years, and maintained them in a way that reflected credit upon himself, and in view of the fact their mother died and he was left alone without her aid to care for these children. The Court can see how it is only natural for the father and guardian in this case to feel that since premiums were paid on the surety bond that the surety should be liable for any losses sustained by the guardian. However, the Court cannot take that view of the case because the evidence convinces the Court that the small sum expended by the guardian for the wards' support shows frugality on his part and not wastefulness or extravagance, and that which has been expended for the wards' maintenance and support was properly expended and judiciously expended and that the wards have received the benefits from the same, and, having received the benefits from it, are not now entitled in good conscience and equity to collect same again from either guardian or his surety. Dupont's Ex'rs v. Johnson, Bailey Eq., 279; Buck v. Martin, 21 S.C. 590, 53 Am. Rep., 702; Kaminer v. Kaigler (1919), 113 S.C. 22, 102 S.E., 20; Alston v. Alston, 34 Ala., 27.
It is, therefore, ordered that the guardian herein be allowed as guardian on the amounts due the respective wards, the following amounts: As to Milton H. Sartor, $540.00; as to Thomas B. Sartor, $720.00; and as to Mary C. Sartor, $900.00.
It is further ordered, that the guardian is due the wards herein, as of date August 8, 1929, the following amounts: Milton H. Sartor, $384.94; Thomas B. Sartor, $204.94; and Mary C. Sartor, 24.94.
JUDGE SEASE'S ORDERThis matter originally arose in the Probate Court of Union County upon the application of C.C. Sartor, Sr., to such Court for his discharge as guardian of the estates of Milton H. Sartor, Thomas B. Sartor, and Mary C. Sartor, minor children of the guardian. After the filing of such application, it seems that the guardian consulted, if he did not employ, counsel for at least two of the minors. After securing the appointment of a guardian ad litem for all three interested cestuis que trustent (though, from the testimony, it seems that one of the minors had reached maturity in the meantime), such counsel served upon the surety of the guardian a petition, wherein was set forth the guardian's insolvency and an accounting by such guardian was prayed, and judgment asked against the guardian, C.C. Sartor, Sr., and his surety, Fidelity Deposit Company of Maryland; though during the course of the trial the attorney for the petitioners announced he would ask for only an accounting by the guardian.
The case thus came on for hearing before Hon A.G. Kennedy, Probate Judge of Union County, at which hearing the surety for the guardian, the Fidelity Deposit Company of Maryland, filed a special appearance for the purpose of protecting its rights in the premises. After hearing all the evidence, the aforesaid Court handed down its order, from which both the minors and the surety have appealed to this Court under Section 185 of Code of Civil Procedure (1922).
The appeal herein was heard by this Court at the May, 1930, term of the Court of Common Pleas. Thereafter counsel for both the minors and the surety have favored the Court with exhaustive briefs, dealing with the legal rules applicable to the factual background reflected by the evidence.
The Court is limited by this appeal "to a review of, and judgment on, the evidence taken below." Ex parte White (1890), 33 S.C. 442, 447, 12 S.E., 5, 6. And, in passing on such evidence, it behooves us to observe the injunction of Gunning v. Erwin (1879, unreported, but this quotation set out by the Reporter in note to Black v. White, 13 S.C. 37): "The Probate Court was the proper tribunal for determining such questions of fact in the first instance; and having the witnesses before it had the best opportunity of judging of the weight that should attach to the testimony of the witnesses, and of drawing proper inferences of fact. The Circuit Court ought not to disturb the findings of the Probate Court on questions of fact of that nature unless clear ground is afforded for that purpose."
Looking to the evidence, as taken in the Probate Court, it will be seen that on June ____, 1919, C.C. Sartor, Sr., was duly appointed by the Court of Probate for Union County guardian for his three minor children, and shortly thereafter, June 23, 1919, became entitled as such guardian to $571.04 for each ward, which fund at the time appeared to be invested in certain farming lands.
At about the time of his qualification as such, it appears that the guardian embarked upon farming and has continuously thereafter followed it as his vocation. During those years what of income he has had has been derived wholly from his farming operations. Fortune seems not to have smiled upon him; and, from 1920 on, the record amply sustains the Probate Court's conclusion that he "had not sufficient personal funds to support his minor children." The testimony of the guardian, uncontradicted on behalf of the minors, was that all the guardianship funds, invested as they were, have been consumed in the maintenance, support, and education of the wards. In such maintenance it appears that the guardian exercised the most commendable frugality. He has always maintained a home for them and has provided them with every educational advantage. No more eloquent tribute to the excellent maintenance provided his wards by the guardian could be adduced than that, at the several hearings, no one of the wards appeared to complain.
Under these facts, the surety submitted that the guardian was entitled to a charge against the guardianship funds for the reasonable cost of their maintenance by the guardian. Though a father-guardian is under a legal duty to maintain his children out of his separate estate, in cases where the father-guardian is improvident, an allowance for future maintenance out of the wards' estate has often been ordered by our Courts. While the proper procedure to follow is to procure in advance an order allowing the use of guardianship funds in the maintenance of the ward, yet, where the father-guardian is impecunious, a claim for past maintenance will be allowed the father-guardian, provided the financial condition of the father-guardian was such as to have moved the Court previously to allow future maintenance. Under the circumstances of the instant case, I feel, even as the Probate Court, that, "Any Court of competent jurisdiction would have * * * authorized the guardian to expend the corpus of his wards' estate for their support, maintenance and education," where it appears from the uncontradicted testimony that all the guardianship funds have been expended upon the frugal maintenance of the wards-children. As Mr. Justice McGowan has pertinently observed in Buck v. Martin (1884), 21 S.C. 590, 53 Am. Rep., 702, "They have no just claim for rents and profits which they consumed themselves."
And the fact that the charge for maintenance exceeded the income of the estates is by no means decisive against the charge. While it is recognized as desirable to confine expenditure for the ward's support and maintenance to the income of his estate, there is no hard and fast rule that it must be so confined; and "it is competent for the Court to sustain such expenditure [from the Corpus] upon an accounting if the showing is such as would have moved the Court to have previously authorized it." Anderson v. Silcox (1908), 82 S.C. 109, 115, 63 S.E., 128, 131. The finding of the Probate Court that such a showing has been here made, we think, is amply sustained by that evidence.
In opposition to this allowance for maintenance, counsel for the minors contended that, since, at the hearing, the guardian himself, chose not to make such charge, the surety was without any right to protect itself in the premises. Being insolvent, it was immaterial to the guardian what judgment might be rendered; and it would seem but natural under the circumstances that, in the interest of his own children, he should seek to impose as heavy a liability as possible upon his surety. To deny to the surety under such circumstances the right to set up the maintenance by the father-guardian of his wards as a charge against the wards' estates could not be in consonance with justice and would be to open the flood gates to the wary and unscrupulous to mulct those who have reposed the highest trust in them. Indeed, it seems that clearer evidence of an intention to charge for such maintenance could hardly be found than that the father-guardian, bereft of personal funds, employed the guardianship funds frugally and beneficially for the maintenance of his wards. Under these circumstances, we feel, as the Probate Court, that the surety should be allowed to set up this charge.
Viewing the order of the Probate Court in the light of the evidence, I feel that it reflects correctly the law of this jurisdiction and comports with the rule of fair dealing to all parties concerned.
It is, therefore, ordered, adjudged and decreed, that all exceptions to the order of the Probate Court herein be, and the same hereby are, overruled and the said order be, and the same hereby is, affirmed.
Mr. John K. Hamblin, for appellants, cites: Guardian should not spend in excess of annual income of ward's estate: 3 Strob. Eq., 31. If he does he should be required to make a showing sufficient to have warranted the expenditure in advance: 113 S.C. 223; 82 S.C. 109; 63 S.E., 128. Account must be stated on annual basis: 72 S.E., 732. Continuing default: 18 S.C. 366. Parent as guardian entitled to claim credit for benefits of infants: 21 S.C. 590, 111 Pac., 884; 24 N.E., 565; 85 N.W., 689; 159 Pac., 317; 43 A.L.R., 595; 28 C.J., 1118, 1119. In absence of intention by guardian to charge estate of ward for support, etc., surety will not be permitted to prove such amounts as set-off: 36 L.R.A. (N.S.), 252, 89 A.S.R., 297; 60 S.E., 85. Court cannot authorize guardian to borrow funds of ward: 212 Pac., 103; 30 A.L.R., 45; 1 S.C. 209; 28 C.J., 1298. Subrogation: 118 S.C. 239; 99 S.C. 352; 109 S.C. 196. Guardian liable for improper loan: 93 S.C. 300; 15 A. E. Enc. of Law, 2nd Ed., 107; 109 S.C. 197.
Messrs. Hughes Russell, for respondent Surety, cite: Surety may file an accounting for a truant principal: 113 S.C. 222; 102 S.E., 20. Father under legal duty to support children: Bailey Eq., 279; 40 S.E., 611; 57 L.R.A., 738; 93 A.S.R., 933. Situation different with mother where father is dead: 34 S.C. 496; 13 S.E., 676. Courts will allow father for future maintenance out of ward's estate: 2 Strob. Eq., 1. And to mothers: 3 DeS., 256; 4 DeS., 445. Where father as guardian seeks allowance for past maintenance showing must be different: 2 DeS., 94; 2 McCord's Eq., 214; 214 Bailey's Eq., 279; 2 McCord's Eq., 43; 5 Rich. Eq., 31; 1 S.C. 337; 73 S.C. 423; 53 S.E., 649; 34 S.C. 255; 13 S.E., 450; 23 S.C. 496; 13 S.E., 676; 21 S.C. 590; 289 Fed., 589; 16 Am. Dec., 661; 57 Am. Dec., 227; 34 Ala., 27; 14 Ky. Law Rep., 237; 104 So., 244; 117 Atlantic, 291; 5 A.L.R., 632; 82 S.C. 109; 63 S.E., 128; 31 S.C. 604; 9 S.E., 817; 1 Hill's Eq., 59. Concurrent findings of fact by Probate Court and Circuit Court will not be disturbed: 13 S.C. 37.
May 26, 1931. The opinion of the Court was delivered by
This Court is entirely satisfied with the decree of his Honor Judge Sease affirming the report of the Probate Judge, and the same is accordingly affirmed.
MR. CHIEF JUSTICE BLEASE, MR. ACTING JUSTICE CARTER, and MR. ACTING ASSOCIATE JUSTICE JOHN I. COSGROVE concur.
MR. JUSTICE STABLER concurs in result.