Olsen v. Thompson

Taylor, J. Tbe only matter in controversy between tbe parties in tbis case is whether tbe guardian should have been allowed more than tbe sum of $96 for board of said infant children while they bved with him, from 1864 to 1868. Tbe evidence- shows that tbe children lived in tbe family of tbe guardian from August 10,1864, to September 4, 1868. In bis account rendered to tbe county court tbe appellant made a charge as follows: “By expenses and services in caring for, clothing, and boarding said minors from August 10,1864, to September 4,1868, at $1 per week for each, 211i weeks, $423.” Tbis item of tbe account was contested by tbe respondents, and be was allowed but $96 on tbe same, being the sum of fifty cents per week for each of tbe minors from tbe date of bis appointment, October 30, 1866, to September 4,1868, when said minors left tbe family of tbe guardian, and returned to their mother, who thereafter cared for them. Tbe evidence shows that tbe guardian was tbe husband of tbe sister of tbe mother of tbe minors, and it tends to show at least that, when tbe children were taken into tbe family of tbe guardian, it was understood between tbe mother and tbe guardian that there was to be no charge made by him for their board. It also tends to show that [670] be did not furnish them any clothing. The evidence also tends to show that when he was appointed guardian for the purpose of receiving the money left to the infants by their grandfather, the appellant stated to the mother that the interest on the money would clothe and school them so long as they remained with him, and it appears that he neither clothed nor schooled them while they lived in his family. It is urged by the appellant that, if he was entitled to anything for the board of his wards, he was entitled to recover more than was allowed to him, and that he should have been allowed for the board of the children from the time they first came into his family, August 10,1864, down to the time of his appointment as their guardian, October 30, 1866, as well as from the date of his appointment. "We do not think the facts in this case are of such a character as to justify a court of equity in making any such allowance. It is evident to us that, had the mother supposed any such charge was to be made by her brother-in-law, she never would have consented to his appointment as their guardian for the purpose of receiving the small patrimony left to them by their grandfather, and that she would have found some way of supporting her infant children without applying a large share of it to the payment for their board while living with their uncle, when she had every reason to believe that no charge for board had been intended when they were taken into his family. Such charges for support previous to the guardian’s appointment are only allowed when there are the strongest equities in favor thereof. In re Besondy, 32 Minn. 385; Villard v. Robert, 49 Am. Dec. 654, and cases cited in note on page 660. We find nothing in this case which entitles the guardian to any such allowance. It is also urged that enough was not allowed for the board, during the time he was guardian and while the infants lived with him. That was a question of fact to be deter [671] mined by tbe court below. Tbe allowance was probably fixed at tbat amount because tbe guardian in bis account rendered to tbe county court in 1872 charged at tbat rate for tbeir board. Under many of tbe authorities, no allowance should have been made to tbe guardian for tbe support of bis wards beyond tbe annual interest upon tbe estate in bis bands. See Villard v. Robert, 49 Am. Dec. 654, and Beeler v. Dunn, 49 Am. Dec. 761, 3 Head, 87. And when tbe guardian claims for tbe board of bis infant wards when they are living in bis family, without first obtaining an order from tbe court to use tbe principal of tbeir estate to pay for such board, be must make a case which appeals strongly to tbe equity powers of tbe court. Tbe learned circuit judge refused to interfere in this case, because be thought be ought not to interfere because tbe board was furnished without first obtaining an order of tbe court permitting him to use tbe principal of tbe estate for tbat purpose ; and, although we are of tbe opinion tbat in a proper case tbe court might allow for such support out of tbe body of tbe estate without first obtaining an order for tbat purpose, we are not satisfied tbat tbe facts in this case would justify such an allowance, and, bad tbe trial court refused to allow anything beyond the interest of tbe estate in payment for tbeñ board in this case, we should have felt constrained to affirm such decision. "While we are of tbe opinion tbat tbe orders of tbe county court made in this matter were not an estoppel against tbe defendant in this action, we think they were properly received in evidence for tbe purpose of showing tbe character of tbe claims made by tbe defendant in regard to this matter. Whether tbe decision of tbe county court allowing or disallowing any items of a guardian’s annual account when made and passed upon by said court as required by sec.'3972, E. S., would be conclusive upon tbe guardian or ward if not appealed from, were it not for sec. 10, Eule X, of tbe county [672] court rules, need not be determined. Said sec. 10 of tbe rules declares that “ no order of tbe court in reference to any annual account of tbe guardian shall be conclusive upon tbe final settlement of tbe guardian’s accounts, but upon sucb final settlement it shall be competent to examine and pass upon aE tbe guardian’s accounts subsequent to tbe time of bis appointment.” This rule must be held to be an authoritative declaration as to tbe effect which shall be given to tbe orders of the county courts made under said sec. 3972. See, also, Willis v. Fox, 25 Wis. 646. There can be no doubt but that tbe guardian should be charged with interest on tbe balance of tbe estate in bis bands. In re Thurston, 57 Wis. 104. By the Oourt.— Tbe judgment of tbe circuit court is affirmed.