Whinery v. Hammond Trust & Savings Bank

Dausman, J. The only question for our determination is whether or not the trial court erred in its action on the petition filed by the guardian ad litem. We have set out the pleadings, the finding, and the decree, in the main action, for the reason that they are inseparably connected with the question to be decided in this appeal. The main action is the source of those elements which exert a controlling influence on the questions whether an allowance ought to be made; and if so; by whom the allowance ought to be paid. It is apparent that the complaint was intended to serve a double purpose: (1) as a complaint to obtain a judicial construction of an instrument creating a trust (Pomeroy, Equity Jurisp. §1064); and (2) as a complaint for the sale of the trust estate (§4032 Burns 1914, §2989 R. S. 1881). It is averred in the complaint that the defendant Lew F. Heintz is a mere child, being eleven years of age. That averment put upon the court the imperati ve duty to protect the infant defendant. The court was required to protect the interests of the minor who was thus brought before it as a litigant, and to see that the child’s weakness and incapacity should not operate to his injury and that his interests should not suffer from the carelessness or improper conduct of other parties to the litigation or of any officer of the court. The law placed the rights and interests of the child in the special care of the court, and it was the duty of the court to exert its utmost power to prevent anything being done to the detriment of the child. The first step to be taken in the discharge of that duty was to select and appoint a proper person as guardián ad litem to protect the child’s interest in the litigation. §§259, 260, 4034 Burns 1914, §§258, 259, 2991 R. S. 1881. It was the duty of the court to select for that purpose a person of sufficient capacity to [291] understand the rights of the child and to manage his interests in the subject of the litigation. It was eminently proper, therefore, that the court should choose from the gentlemen of the bar. Indeed, in the appointment of guardians ad litem it is the duty of the court to select men learned in the law and capable of taking care of the interests of their wards. Where litigants are of full age they are presumed to be capable of choosing counsel to represent them and capable of making their contracts with respect to compensation. But infant defendants are the wards of the court and the court must represent them in the procurement of counsel. An officer of the court, selected by the court to protect-the interests of minors, cannot ordinarily excuse himself upon good grounds from accepting the appointment; and he should not be expected to perform his duties without compensation. As the court has the power to appoint a guardian ad litem and impose duties upon him for the benefit of a minor, it is but an incident to that power that it may allow him suitable compensation to be paid as the equity of the case shall require. Kerbaugh v. Vance (1880), 5 Lea (Tenn.) 113. See, also, Walker v. Hallett (1840), 1 Ala. 379; Robinson v. Fidelity Trust, etc., Co. (1889), 11 Ky. Law Rep. 313, 11 S. W. 806; Snyder v. Fidelity Trust, etc., Co. (1893), 14 Ky. Law Rep. 615; Tyson v. Richardson (1899), 103 Wis. 397, 79 N. W. 439; Richardson v. Tyson (1901), 110 Wis. 572, 86 N. W. 250, 84 Am. St. 937. In Illinois the subject is controlled by statute: Gagnon v. Burton (1902), 107 Ill. App. 506; Smith v. Smith (1873), 69 Ill. 308; Hutchinson v. Hutchinson (1894), 152 Ill. 347, 38 N. E. 926. Prior to the appointment, Mr. Whinery was a member of the bar and' therefore, in a general sense, an officer of the court. By the appointment, the court [292] made him its officer in a more special sense. It is the duty of a court to protect its officers. Miedreich v. Rank (1907), 40 Ind. App. 393, 82 N. E. 117. It is the special duty of a court to encourage by every reasonable means and to every reasonable extent whoever stands in the character of guardian ad litem or next friend on behalf of an infant, when acting in good faith for the benefit of the infant. Richardson v. VanVoorhis (1888), 3 N. Y. Supp. 396. When the attorney accepted the trust imposed upon him by the order of the court it became his duty to investigate the law and the facts and to use due care and diligence in his efforts to protect the rights and interests of his ward; and, if the interests of the infant had suffered by any neglect or mismanagement of the guardian ad litem, undoubtedly the latter would be liable by reason thereof. From the record before us it appears that the guardian ad litem exercised care and diligence in his effort to protect the infant’s rights in the subject of the- litigation, and that he is entitled to receive suitable compensation for his services. The court owed him the special duty to aid him in recovering just compensation, if within its power so to do. The proper and usual manner of discharging that duty is to make an allowance in the cause in which the appointment was made. The court may make such an allowance of its own volition and without awaiting a request therefor. Sometimes the allowance is made upon motion or upon the filing of an account. We perceive no reason why an application in the form of a petition is not a proper manner of presenting the subject to the court. The petition now under consideration is not an intervener’s petition. It is readily distinguishable also from a petition by a litigant asking an allowance for an attorney’s fee on account of services rendered by an at [293] torney employed by the litigant. It is the petition of the court’s own officer who was brought into the case by the appointment and order of the court, and who has rendered services pursuant to the duty imposed upon him by the court. His petition is but an incident of the main action. Now, by whom should his compensation be paid? We are not favorably impressed by the conduct of the trustee. From the complaint alone it appears that the trust estate was sorely in need of protection from some source. Apparently the adult defendants did not see fit to make a defense and the only resistance to the complaint came from the guardian ad litem. It is a clear inference that he felt compelled to bring in a next friend to file a cross-complaint in behalf of the infant because of the ruling on the demurrer to the amended second paragraph of his answer ; and that the ruling on the demurrer was due to the narrow decisions in the following cases: Spencer v. Robbins (1886), 106 Ind. 580, 5 N. E. 726; Gibbs v. Potter (1906), 166 Ind. 471, 77 N. E. 942, 9 Ann. Cas. 481; Ziegler v. Ziegler (1906), 39 Ind. App. 21, 78 N. E. 1066. However, the entire defense might have been made under the general denial. Nevertheless, the services rendered by the guardian ad litem have inured to the benefit of the trust estate and thereby the interests of all the beneficiaries have been promoted. On this ground it is proper to order 'that the allowance to the guardian ad litem be paid by the trustee as costs. If the guardian ad litem had resisted the action of the court in authorizing the trustee to pay from the trust estate compensation to its own attorney for services rendered in the main action, we could readily understand the propriety of that resistance; but we perceive no valid reason why the trustee, who is presumed to be impartial as between beneficiaries, should resist [294] the making of an allowance to the guardian ad litem to be paid from the trust estate. The amount to be allowed to the guardian ad litem must be left to the sound discretion of the trial court; and on that feature we express no opinion. The judgment denying an allowance to the petitioner is reversed; and the court is directed to reinstate the petition, to hear evidence on the value of the services, to allow the petitioner reasonable compensation, and to order the payment thereof by the trustee as costs.