Maryland Casualty Co. v. Lawing

Devin, J. The right of the plaintiff surety to bring this action, now, for an authoritative determination of the questions raised by the exceptions to the guardian’s accounting, involving contingent liability on her bond, was upheld on the former appeal in this case, 223 N. C., 8. G. S., 28-147. The only questions presented by the present appeal relate to the validity and effect of the adjudication below as t.o certain items in the guardian’s account for which credit is claimed. 1. Following investigation and testimony of accountants employed by plaintiff, and in accord with the suggestion of the referee, an agreement between the plaintiff, the guardian and the guardian ad litem, of the wards was entered into allowing the guardian credit in her account for *107 expenditures for improvement of wards’ property in Florida, for travel expense to and from that state in connection with the business of her wards, and for a small allowance of spending money for each ward. This agreement, which also eliminated other credits originally claimed, was based on the evidence and received the approval of the presiding judge. After consideration of the evidence the court found that it was to the best interest of the wards that the agreement be approved and held that these allowances were binding on the wards. The exception to this holding cannot be sustained. The rule is that when the court having jurisdiction of the subject matter and the parties in a proper proceeding, after full investigation and upon sufficient evidence, undertakes supervision of infants’ estates and thereupon adjudges the transaction to be for the best interest of the infants, the court’s decree will be held to be conclusive. Ferrell v. Broadway, 126 N. C., 258, 35 S. E., 467; Rector v. Logging Co., 179 N. C., 59 (62), 101 S. E., 502; In re Reynolds, 206 N. C., 276 (288), 173 S. E., 789. 2. Plaintiff noted exception to the allowance to the guardian for board and laundry for her wards. While it is the primary duty of a parent to support his child whether the child has an estate or not this obligation may be qualified by the parent’s ability. Sanders v. Sanders, 167 N. C., 319, 83 S. E., 490. And when the parent has not means sufficient to provide necessary maintenance he should have reasonable allowance for lawful disbursements from the child’s estate for that purpose. Mull v. Walker, 100 N. C., 46 (50), 6 S. E., 685; Burke v. Turner, 85 N. C., 500; Gullick v. Slaten, 169 S. C., 244, 168 S. E., 697; Sartor v. Fidelity & Deposit Co., 160 S. C., 390, 158 S. E., 819; In re Rohne, 157 Wash., 62, 39 C. J. S., 101. While in Jordan v. Coffield, 70 N. C., 110, it was said the obligation of a mother to support her infant children was not the same as that of the father, and that the weight of authority was against liability of the mother to this burden, the correctness of this statement was doubted by Ruffin, J., in In re Lewis, 88 N. C., 31, and we think the applicable rule is that the allowance of a charge by a mother guardian for the maintenance of her wards would depend upon her ability to provide suitable support, under the circumstances. Here the referee found from the evidence that the guardian’s property and income were not sufficient to enable her from her own funds to support herself and her children in accordance with their station in life. It may be noted that the wards’ real property in North Carolina was found to be worth $100,000 and the property in Florida $60,000, and that due to interest requirements on money borrowed pursuant to order of court for the erection of a building in Lincolnton, and improvements on Florida property, the portion of income due guardian individually was materially reduced during the period in question. *108 It is suggested, However, that this principle should not be extended to those disbursements made by the guardian prior to appointment. While there is authority for this position, Barnes v. Ward, 45 N. C., 93, we think the better rule is that credit may be allowed to the parent guardian for disbursements made in good faith which would have been authorized by the court if an application had been made in advance. In re Vieweger, 23 N. J. Eq., 527; Hyland v. Baxter, 98 N. Y., 610; Gullick v. Slaten, supra; 39 C. J. S., 279; 67 A. L. R., 1405 (note), and cases there cited. The widowed mother was the natural guardian of her infant children, and de facto guardian as well. Hence her disbursements from their estate, made in good faith for their benefit, prior to her legal appointment will not be disallowed for that reason. Kelly v. Kelly, 89 Mont., 229. 3. Plaintiff excepted to so much of the judgment as approved the referee’s finding that the attorney of the guardian employed by her in connection with the administration of the guardianship be allowed $1,000 for- his services extending over several years. The statute, G. S., 33-42, provides that “Every guardian may charge in his annual account all reasonable disbursements and expenses,” and we think it well settled that the employment of counsel for legal advice and assistance in connection with the administration of the wards’ estate is a proper expense to be charged in the guardian’s account, if in reasonable amount, and for the benefit of the wards. Burke v. Turner, 85 N. C., 500; Whitford v. Foy, 65 N. C., 265; 25 Am. Jur., 63. Where the interests of the guardian and wards are antagonistic and the services rendered by the attorney are in the interest of the former rather than the latter the obligation to pay therefor is the individual liability of the guardian. Lightner v. Boone, 221 N. C., 78 (88), 19 S. E. (2d), 144. But here the services rendered 'by the attorney to the guardian in this case were expressly excluded. The referee found, and the judge approved, that the services charged were rendered in connection with the estate of the wards and that the amount allowed was a reasonable one under the circumstances. The apportionment of costs in this case was a matter in the court’s discretion. We conclude that the findings of the referee, supported by evidence and approved by the judge, establish a sound basis for sustaining the judgment below, and it is so ordered. Affirmed.