Gislason v. Gislason
Gislason v. Gislason
Opinion of the Court
This is an appeal from a judgment of the district court of Grand Forks County, which affirmed an order of the county court of Grand Forks County approving and allowing the annual report and accounting of J. D. Gislason, guardian of the person and estate of Ingimar Gislason, an incompetent. Ingimar Gislason is
' Tbe record on this appeal shows that tbe guardian, J. D. Gislason, is tbe brother of Ingimar Gislason, and was appointed guardian on February 14, 1930. At tbe time of tbe appointment, Ingimar Gislason was an inmate of the State Hospital for tbe Insane. Tbe inventory and appraisement of tbe estate filed shortly after tbe appointment of tbe guardian shows that then tbe only assets of tbe estate consisted of certain personal estate of tbe value of $484.34. J. D. Gislason has continued to serve as guardian of tbe pers.on and estate of Ingimar Gislason since bis appointment in February, 1930. Tbe annual report and .accounting in question here is tbe thirteenth annual report and accounting rendered by him. Such annual report and accounting covers tbe period from Jauary 25, 1942 up to and including January 25, 1943. 'The report shows that tbe estate has assets conisting of approved securities, principally bonds of tbe United States, aggregating in all $6415.00. It also shows that income aggregating in all $1240.25 was
The record on this appeal shows that the guardianship proceeding, from its inception, has been conducted by the same guardian and under the administration of the same judge. The county judge who entered the order overruling the objections made by the Yeterans Administration, and approved the order and accounting, and authorized the payments to which the Yeterans Administration objected, is the same judge who issued the letters of guardianship to J. D. Gislason in February, 1930. The record does not show when the incompetent was released from the Insane Asylum; but apparently he has not been an inmate of that institution or of any other institution for a long time, although it is conceded that he is mentally incompetent. According to the evidence the guardian made arrangements whereby the incompetent ward is furnished living quarters and board in the home of his mother, who is also the mother of the guardian. The evidence shows that the incompetent has peculiar vagaries and whims pertaining, for instance, to his food and his clothing. The record further shows that the guardian has given personal attention to the welfare of the incompetent and has sought to humor such whims and vagaries, and has personally endeavored to obtain the food and clothing that the ward desired. The evidence also shows that the guardian’s wife has endeavored to look after the welfare of the ward and has rendered personal service in that behalf. The record bears ample evidence that the comfort and welfare and happiness of the ward has been sought by the guardian, and there is not the slightest indication in the record that there has been any disregard or failure to consider or to promote such welfare, or that there
According to tbe record witnesses were beard before tbe county judge on tbe bearing bad in tbe county court. Tbe evidence thus produced bas not been preserved and presented by tbe appellant as a part of tbe record on tbis appeal. Hence, of course, we have no means of knowing what that evidence was. In tbe order approving tbe annual report and accounting and authorizing the payments of tbe two items in question tbe court said:—
“The said Frank T. Hines, Administrator of Veterans’ Affairs, by bis said attorney, having filed written objections against tbe payment of any fees to tbe Guardian and any disbursements to tbe Northwestern Trust Company whereby such fees and disbursements exceed 5% of tbe annual income to tbis estate, and to any payment from tbe funds in tbis estate to tbe Northwestern Trust Company based upon tbe grounds of being an expense of tbe administration of tbe estate, and to no other matters covered by said report and petition, tbe Court proceeded to bear tbe testimony offered by and on behalf of tbe guardian, and tbe arguments of counsel, and it appearing to tbe court, after due consideration of tbe same, that tbe affairs of tbis estate are such, and tbe condition of said ward is such as to require extraordinary services to be rendered by said guardian, justifying a fee, in excess of that provided by law for ordinary services, and that tbe personal services rendered by tbe guardian to tbe person of tbe ward in connection with tbe guardianship of bis person, were, during tbe year covered by said report, sufficient to justify tbe compensation of $60.00 requested by said guardian, and that in addition thereto, it was reasonably necessary for tbe said guardian, in order properly to husband, care for and invest tbe said estate, to employ expert assistance in connection with tbe said investments, and in connection with tbe reports and accountings, and that tbe services rendered him by tbe Northwestern Trust Company were of tbe reasonable value to said estate of tbe sum of $60.00.”
Tbe case was tried anew in tbe.district court and evidence was adduced. Tbe secretary of tbe Northwestern Trust Company was called and testified as a witness. He testified that, tbe Northwestern Trust Company bas been connected with tbe guardianship proceedings since
The trial court filed a memorandum decision wherein, after quoting the portion of the order of the county judge set out above, it was said:—
“Judge Lebacken (the county judge) is on the ground. He has had this estate before him for several years. He knows its growth and solvency. He knows better than I the value of the care, service, and attention that are given and rendered to both the ward and his estate. With all that knowledge of the situation before him, he made the above finding. I cannot see my way clear to disturb the same.”
Thereafter the district court made and filed formal findings of fact wherein it was said:—
“The affairs of this estate are such, and the condition of said ward is such as to require extraordinary services to be rendered by said guardian, justifying a fee in excess of that provided by law for ordinary services, that the personal services rendered by the guardian to the person of the ward in connection with the guardianship of his person, were, during the year covered by said report, sufficient to justify the compensation of sixty dollars requested by said guardian, and that in addition thereto, it was reasonably necessary for the said guardian, in order properly to husband, care for and invest the said estate, to employ expert assistance in connection with the said investments, and in con*737 neetion with the reports and accountings, and that the services rendered him by the Northwestern Trust Company were of the reasonable value to said estate of the sum of sixty dollars.”
The laws of this state provide:—
“The compensation payable to guardians under the provisions of this chapter shall not exceed five percent of the income of the ward during any year. If extraordinary services are rendered by such guardian, the county court, upon petition and after a hearing thereon, may authorize additional compensation therefor payable from the estate of the ward.” ND Rev Code 1948, § 30-2313; Sess Laws 1931, c 309, § 11.
Appellant contends that this statute limits expenditures that may be made from the ward’s estate for compensation to the guardian for services in any one year to five percent of the income of the ward during such year, unless extraordinary services are performed; and that payment may not be made out of the ward’s estate for extraordinary services in excess of the percentage of the annual income fixed by the statute, unless authority is granted by the court pursuant to notice and after hearing; and that in such case the petition must specify the services to be rendered and the amount to be paid therefor so as to afford the interested parties an opportunity to be heard on all pertinent questions relating to the expenditures. Appellant further contends that in this case no extraordinary services were performed by the guardian, and that the services performed by the Northwestern Trust Company were merely ordinary services such as the guardian was required to perform himself as part of his duties in the management of the estate, and, consequently, under the statute no expenditures could be made out of the ward’s estate to compensate for the services performed by the guardian and by the.Trust Company, in excess of five percent of the annual income.
As has been said, here the annual income of the estate of the ward for the year in question amounted to $1240.25. The two items in question aggregate $120.00. The statute invoked by the appellant limits the compensation to the guardian to a sum of not to exceed five percent of the income of the ward during any year, but authorizes the court to allow additional compensation in excess of that sum for extraordinary services. It is a general rule that prior authorization by the court is
Of course, where the guardian incurs liability or expends moneys without a previous order of the court authorizing the expenditures to be made from the estate he faces the hazard that the court' may not authorize the expenditure to be charged in the account upon the assets of the estate. 39 CJS p. 156. The statute involved here does not depart from such general rule. It makes no provision that the guardian must obtain the approval of the- court in advance of making expenditures or incurring liability for appropriate purposes incident to the proper conduct of the affairs of the ward. The restriction upon expenditure merely relates to the amount of compensation to be paid to a guardian for ordinary services. It does not fix a definite limit on expenditures that may be made for other purposes. It does not forbid the guardian to employ someone to assist him, where that becomes necessary in the management of the estate, or in the care and maintenance of the ward (25 Am Jur 62, Guardian and Ward, § 96; 39 CJS p. 159, § 91) ; nor does it fix any definite limit upon the amount of additional compensation that may be charged to, and paid out of the assets of, the estate for extraordinary services whether performed by the guardian himself, or by others employed by him. That is a matter left to be determined by the court as the facts may warrant in each particular case. Wade’s Estate, 343 Pa 520, 23 A2d 493. The statute does not require as a condition precedent to the allowance of additional compensation for extraordinary services that the guardian must procure authority to perform the services before the services are performed. The statute does not provide or imply that the guardian who performs extraordinary services or employs others to furnish proper and necessary service for the benefit of the ward without prior authorization of the court shall be denied compensation or reimbursement because there was no previous authorization. It does not deprive the court of authority to approve what the guardian has done, or of authority to allow payment for services that
In this case no payment has been made by the guardian either for his own services or for the services which the Northwestern Trust Company rendered at his request. In his report and accounting he asks for authority to make payment. He listed the items in his annual report and accounting — recognizing that approval by the coure was necessary before the expenditure might be made out of the ward’s estate. The guardian did not attempt to pay himself at all without specific authority from the court, nor did he attempt to make payment to the Northwestern Trust Company for the services which it had rendered at his request until he was authorized by the court to make such payment.
The matter of additional compensation, that is, the question whether the guardian should be állowed to charge the estate with $60.00 for his services and with $60.00 for the services which the Northwestern Trust Company had performed at his request, was duly submitted to the county court upon the merits. The claims were listed and authority to make payment out of the assets of the estate requested in the annual report and accounting. Due notice of the report and of the hearing thereof was given as required by law. The appellant appeared at the hearing and filed objections to the merits of the claims. He was afforded full hearing on the merits in the county court; he appealed from the decision of the county court and asked for and was afforded a trial on the merits in the district court; and he has appealed from the decision of the district court and demanded a trial anew in this court. It seems indeed that the appellant has been afforded his full day in court.
It seems to be the contention of the appellant that when the legislature spoke of “extraordinary services” it meant services of an anomalous and wholly unusual character — -services which would arise only in ease of some unforeseen emergency or contingency. We think that when the lawmakers spoke of “extraordinary services” they used the term in contradistinction to “ordinary services;” that is, they had in mind services other and in addition to such “usual, customary, regular, or ordinary” services (Webster’s New International Dictionary, 2d ed; Walker v. State, 12 SO 200, 280) as a guardian would naturally be
The guardianship was not intended wholly or even primarily for the management of property. The estate was and is a means to an end and not an end in itself. The end to be accomplished was the welfare, the comfort and happiness of the ward. In the very nature of things the county court has wide discretionary powers in such cases. Under the Constitution such court has exclusive, original jurisdiction in the appointment of a guardian and in the settlement of his accounts. ND 'Const § 111. In naming a guardian the court is not concerned wholly <or even primarily with the business acumen and skill of the guardian. There is no ready-made pattern. A person who may be the best qualified to serve as a guardian in one case may be much less qualified in another. The guardianship of the person and estate of an incompetent like the one with which we are dealing here presents not merely questions of handling assets and conduct of business affairs. Much more 'does it present questions relating to the safety, comfort, happiness and welfare of the ward. The most adept business or financial expert might not be able to render the many small services tending to prevent waste of the assets and to promote the comfort and happiness of the ward which another person with much less business skill or ability might be able to render. In the very nature of things the county court must exercise discretion in determining whether in any given case certain services are ordinary or extraordinary, as well as whether in the ■circumstances of the case it was or is necessary or desirable for the guardian in the performance of his duties to obtain the assistance of others (25 Am Jur 62, Guardian and Ward, § 96; 39 CJS p. 159, § 91), and the amount properly chargeable to the estate for such services by others, or for extraordinary services performed by the guardian himself. In re Wade’s Estate, supra. The guardian here is not a man of large affairs. He is a carpenter. The record, however, leaves no room for doubt that the affairs of the estate have been well conducted
Reference
- Full Case Name
- IN THE MATTER OF THE ESTATE OF INGIMAR GISLASON, Incompetent. J. D. GISLASON, Guardian v. GUDRUN GISLASON, and United States Veterans Administration, Fargo, North Dakota
- Status
- Published