IN RE: ESTATE and GUARDIANSHIP of De Witt Clinton COOKINGHAM

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District Court of Appeal, Second District, Division 3, California.

IN RE: ESTATE and GUARDIANSHIP of De Witt Clinton COOKINGHAM, Incompetent. Ella Marie ORMSBY, Petitioner and Appellant, v. De Witt Clinton COOKINGHAM, Contestant and Respondent.

Civ. 20677.

Decided: May 26, 1955

Bailie, Turner, Lake & Sprague, Los Angeles, for appellant. Carl O. Kowol, Montrose, for respondent.

Appeal from “Order Settling Seventh and Final Account of Guardian and Petition for Guardian's Fees and Attorneys' Fees.”   The order disallows two items of expense incurred by the guardian of an incompetent in unsuccessful opposition to the ward's petition for restoration to capacity.   The items are an attorney fee of $625 and expense of a psychiatrist, $250.

De Witt Clinton Cookingham was committed to Patton State Hospital in 1942 and his daughter, Ella Marie Ormsby, was appointed guardian of his person and estate on April 28, 1944.   He remained in Patton until November 1953 when he was temporarily released, being then 80 years of age.   He had filed in October of that year a petition for restoration to capacity;  this he did through attorney Kowol, as his guardian ad litem.   Notice of hearing was served upon the guardian;  she then consulted her attorneys and through them employed a psychiatrist, who apparently examined Mr. Cookingham and testified at the hearing.   Counsel seem to agree that two experts testified in support of the petition, while the guardian's expert testified to the contrary, and that the court appointed and heard an expert of his own selection.   The petition was granted and thus the guardianship ended.   The only points raised on the guardian's appeal relate to the rejection of the attorney and psychiatrist fees and exclusion of evidence in relation thereto.

The hearing on the settlement of the account was quite informal.   After some preliminary discussion and before offer of any evidence the court announced a ruling.   It was then agreed, after considerable interchange of views between court and counsel, that the guardian's attorney should make an offer of proof to which petitioner's attorney would object so that the court could make a ruling thereon.   There never was any room for doubt as to what the ruling would be, for the judge had repeatedly expressed the views (1) that a previous order of court authorizing the employment of attorneys and an expert witness was a necessary predicate for such an allowance, (2) that the court is the real guardian of an incompetent, (3) that a guardian who is notified of a hearing upon an incompetent's petition for restoration to capacity and who is authorized by statute to resist it, Prob.Code, § 1472, proceeds at his peril and unless successful in his opposition cannot be held to have acted for the benefit of the ward and hence cannot be allowed any expenditures made in that matter.

The offer which was finally made was patently insufficient but the previously announced conclusions of the court had dispensed with the necessity of any offer, Lawless v. Calaway, 24 Cal.2d 81, 91, 147 P.2d 604;  In re Estate of Kearns, 36 Cal.2d 531, 537, 225 P.2d 218;  Heimann v. City of Los Angeles, 30 Cal.2d 746, 757, 185 P.2d 597;  if no offer was necessary, then a defective one could not obscure the fact that court and counsel knew that none of the pertinent evidence would be received.   See People v. Amdur, 123 Cal.App.2d Supp. 951, 970, 267 P.2d 445;  Morello v. Growers Grape Prod. Ass'n, 82 Cal.App.2d 365, 376, 186 P.2d 463;  Phillips v. Powell, 210 Cal. 39, 42, 290 P. 441.   The defect in the offer was that it did not specifically embrace the matter of the guardian having acted in good faith and upon substantial grounds.   She was present in court.   Counsel for both sides had stressed the importance of that issue;  indeed respondent's brief on appeal does so.   But the trial judge would have none of it, ruling that the result answered the question of whether the guardian had acted for the benefit of the ward.

The views orally expressed by the judge were carried into a “finding” IV, which reads:  “That the incompetent through his guardian ad litem filed a petition for restoration to capacity and for termination of guardianship;  that guardian secured no prior approval of the Probate Court authorizing her to employ a psychiatrist to examine said ward, or to employ attorneys to oppose said petition;  that petitioner as guardian owed no duty to the ward, or to the Court, to investigate the competency of the ward, or to oppose or take any other action in connection with such proceedings for restoration to capacity and for termination of guardianship;  that her acts of employing a psychiatrist and attorneys were unauthorized and not a justifiable charge against the guardianship estate.”   In most respects these conclusions are erroneous.

The guardian's status is essentially that of trustee.  Section 1400, Probate Code, says:  “ * * * The relation of guardian and ward is confidential, and is subject to the provisions of law relating to trusts.   In the management and disposition of the person or property committed to him, a guardian may be regulated and controlled by the court.”   It is the business of a guardian to conserve and advance the interests of the incompetent in every way.  Clark v. State Bar, 39 Cal.2d 161, 166, 246 P.2d 1, 3:  “As guardian petitioner occupied a position demanding of him the highest degree of diligence and good faith.  Probate Code § 1400;  In re Guardianship of Carlon's Estate, 43 Cal.App.2d 204, 208, 110 P.2d 488.”   The guardian is vested with genuine discretion with respect to the person and the property of the ward where, as here, she has been appointed to act in the dual capacity.  “In fact, by the express terms of the statute, the guardian is given the possession, care, and management of the estate of his ward.  Civ.Code, §§ 236, 247, 249;  Code Civ.Proc. §§ 1753, 1754, 1769, 1770.   And the powers there given and the duties imposed are such as in their essential nature are wholly at variance with the existence of the right in the court to take the custody and management of the estate out of the hands of the guardian into its own.   Under these provisions, as it was at the common law, it is the guardian, and not the court, who is made responsible for the proper administration of the trust.   He it is to whose custody the property of the ward is intrusted, and to whom the law and the ward alike look for its safe return.   In the performance of his duties he is, it is true, in certain respects under the control and supervision of the court appointing him;  but this right of supervision does not, under our Code, nor did it at the common law, carry the power to interfere in any such manner with the custody and general management of the property of the ward, except, of course for conduct authorizing suspension or removal.  * * * And it is primarily to his discretion, rather than that of the court, that this most important duty is committed,—a duty to be performed under the direction and control of the court, but, after all, a duty confided by the law to the guardian, who is made responsible for its faithful performance.”  De Greayer v. Superior Court, 117 Cal. 640, 644–645, 49 P. 983, 984.   To same effect see Walters v. Superior Court, 129 Cal.App. 19, 21, 18 P.2d 343;  In re Estates of Boyes, 151 Cal. 143, 154, 157, 90 P. 454.

25 Am.Jur., page 41, section 61:  “A guardian acts, as has been shown, as an arm or officer of the court, from which it follows that the office or trust is administered under judicial control, and the guardian may be regulated and controlled in the management and disposition of the property and person of the ward.   Ordinarily, however, the control exercised by the court is largely theoretical;  in actual practice the court knows very little concerning the guardian's acts and is not usually informed except by reports which appear when requests are made to dispose of the ward's property by sale.   The guardian is virtually a free agent so long as he is guilty of no acts detrimental to his ward;  in handling the estate he exercises his own judgment, and in his control of the real property, except in so far as its title is concerned, he operates as freely as though the property were his own.”   A trustee (a guardian) is entitled to the presumption that he or she has acted in good faith, In re Estate of Ferrall, 41 Cal.2d 166, 167, 258 P.2d 1009, and the court will control the exercise of the trustee's discretion only in case of abuse of same.  In re Estate of Marré, 18 Cal.2d 184, 190, 114 P.2d 586.  “The court will not substitute its judgment for that of the guardian as to what is for the best interests of the infant unless unusual circumstances are shown.”   Latterman v. Guardian Life Ins. Co. of America, 280 N.Y. 102, 19 N.E.2d 978, 979.

Section 1470, Probate Code, authorizes a guardian to institute a proceeding for restoration;  section 1471 requires notice of hearing to be served upon the guardian if the proceeding is instituted by the incompetent or any other person in his behalf;  and section 1472 declares that the guardian “may contest the right to the relief demanded.”   Inherent in commencing or opposing such a proceeding is the exercise of judgment or discretion by the guardian.   He cannot file or oppose without reasonable grounds therefor.   Action on his part often poses a delicate question which he as a layman is not competent to answer.   He should and does have the right to consult those who know, see Clark v. State Bar, supra, 39 Cal.2d 161, 173, 246 P.2d 1, and, possessed of expert advice, to exercise an honest and informed judgment and act or refrain from acting accordingly.   The mere fact that a ward has been released from detention does not solve the problem for the guardian, In re Estate of Kay, 30 Cal.2d 215, 225, 181 P.2d 1, for the question is not one of sanity but whether the ward is able “unassisted, properly to manage and take care of himself or his property” and not “likely to be deceived or imposed upon by artful or designing persons.”  Prob.Code, § 1460;  In re Des Granges' Estate and Guardianship, 102 Cal.App. 592, 596, 283 P. 103;  In re Guardianship of Gordon, 56 Cal.App.2d 523, 527, 132 P.2d 824.   It would be a gross injustice to the ward for the guardian to institute or consent to proceedings for restoration if he knows or is reliably informed of continuing incapacity of the ward to conduct his own affairs.   It cannot be assumed that all judges will be able to detect the ultimate truth of present competency or incompetency if presented with evidence favoring only one side of the issue,—if the guardian sits idly by and leaves it to the court to ferret out the truth.   It should be the law that the guardian can and must exercise an informed discretion in this matter and that, when he acts in good faith and upon substantial grounds, he is not required to proceed at his peril, forfeiting all right to reimbursement for expenses in the event the court disagrees with him upon a difficult question of fact, one which is actually a conclusion drawn from many facts.   Though there is no decision in this state specifically in point the general current of authority elsewhere supports the view just expressed.   This is true with respect to a guardian's instituting or opposing a restoration proceeding.

As to the former, Kay v. Kay, 53 Ariz. 336, 89 P.2d 496, 498, 121 A.L.R. 1496, says:  “Attorney's fees and expenses incurred in good faith to restore one to capacity, when reasonably necessary, may be charged against the ward's estate, whether the proceedings are successful or not.”   The case is annotated in 121 A.L.R. 1501.   It is there said that the Kay case voices an established rule.   Cases additional to those found in 121 A.L.R., and to the same effect, are:  Penney v. Pritchard & McCall, 255 Ala. 13, 49 So.2d 782;  Templeman v. Pierson, 334 Ill.App. 1, 78 N.E.2d 319, 322;  In re Holder's Estate, 168 Kan. 657, 215 P.2d 166, 169;  In re Schulte's Guardianship, 231 Iowa 237, 1 N.W.2d 193, 194;  In re Weightman's Estate, 126 Pa.Super. 221, 190 A. 552, 554–555;  Collins v. Marquette Trust Co., 187 Minn. 514, 246 N.W. 5, 6.   See also, 44 C.J.S., Insane Persons, § 88b, p. 236;  28 Am.Jur. p. 690, § 53.

Cases dealing with a guardian's unsuccessful opposition to restoration are few in number, but they turn also upon the questions of good faith and substantial grounds for opposition.   It would be difficult to improve upon the exposition found in Palmer v. Palmer, 38 N.H. 418, 419:  “The revocation of the guardianship in such cases is not to be made until the cause for which it is granted is removed.   If this is a matter so obvious that no reasonable doubt can be entertained on the subject, it is the duty of the guardian to promote instead of resisting the revocation.   But it is equally his duty, when the case is such as to admit of question, to present the facts fully to the judge.   The interests of the ward, as well as sound reasons of public policy, require that the investigation should not be an ex parte one.   The ward is not required or expected to produce evidence tending to show that the cause of guardianship is not removed.   If the guardian should refrain from opposition for the reason that he apprehends the result may possibly show that the cause is removed, and he thereby be exposed to loss of the expenses incurred, the consequence will be that in many cases the revocation will be made upon unsatisfactory evidence, and when possibly the interests of the ward require that the guardianship should continue unrevoked.   When the guardian, as in this case, proceeds in good faith, and in the exercise of a sound discretion, to try a doubtful question, the recovery of his reasonable expenses incurred in trying it should not be made to depend upon the result.”

American Nat. Bank v. Bradford, 28 Tenn.App. 239, 188 S.W.2d 971, 979, makes the same holding.   It quotes the Palmer case and also says:  “It is insisted that the guardian should be denied any compensation because it opposed the ward's efforts to be restored to her legal capacity and that its attorney, Mr. Stokes, likewise should be denied any fee.   The argument is that a guardian as a fiduciary owes the duty of undivided loyalty to the ward, that opposing the ward's suit for restoration is a breach of that duty, and that such dereliction of duty disentitles the guardian and the attorney representing it to any compensation.   It is true a guardian does owe his ward the duty of undivided loyalty.   But that does not mean that a guardian of a mental incompetent must never oppose his application to be relieved of restraint and legal disability.   In some cases it would be an act of intolerable oppression for the guardian to oppose such an application, as where it is clear the ward has recovered and is restored in mind;  but in other cases the guardian's duty of loyalty would require him to oppose such an application, as where it is clear the ward is not recovered.  ‘It may well be that the most cruel and unfriendly thing that could be done to an incompetent would be to free him from all restraint, and the most beneficent and kindly thing to continue him subject to restraint.’  In re Larner, 39 Misc. 377, 79 N.Y.S. 836, 838.   Where the ward's mental condition is really in doubt and the guardian acts in good faith in opposing his petition for restoration, the guardian is entitled to the reasonable and necessary expenses thereby incurred.”   To the same effect is In re Larner, 39 Misc. 377, 79 N.Y.S. 836, 837.

While they do not decide the exact question presented at bar, In re Guardianship of Sherman, 42 Cal.App.2d 251, 108 P.2d 717 and Stone v. Conkle, 31 Cal.App.2d 348, 351, 88 P.2d 197, definitely point to the same conclusion as the above cited cases.   Respondent relies upon McClenahan v. Howard, 50 Cal.App. 309, 195 P. 68.   It contains language favorable to respondent's contention, but it does not involve any guardian or allowance to a guardian.   It was an action brought by an alienist whom the court viewed as a mere volunteer.   He had unsuccessfully tried to have a guardian appointed and the reviewing court held that the evidence sustained a finding that the services were not rendered at defendant's request or for her benefit.   The case is not controlling here.

There is no merit in the claim that failure of the guardian to obtain advance approval of the questioned expenditures precludes allowance.   So held in In re Estate of Clanton, 171 Cal. 381, 386, 153 P. 459;  In re Estates of Boyes, supra, 151 Cal. 143, 158, 90 P. 454;  Clark v. State Bar, supra, 39 Cal.2d 161, 171, 246 P.2d 1;  In re Estate of Schluter, 209 Cal. 286, 289, 286 P. 1008;  In re Guardianship of Ewing, 42 Cal.App.2d 629, 630, 109 P.2d 748.   The decision in In re Guardianship of Stallings, 85 Cal.App.2d 443, 447, 193 P.2d 114, is to the contrary, but we do not consider that it must prevail over the Supreme Court rulings above cited, none of which is cited in the Stallings opinion.   The absence of prior approval of such expenditures as those involved in this appeal was held to be no bar to their allowance in these cases:  In re Schulte's Guardianship, supra, 231 Iowa 237, 1 N.W.2d 193, 194;  In re Holder's Estate, supra, 168 Kan. 657, 215 P.2d 166, 169;  In re Weightman's Estate, supra, 126 Pa.Super. 221, 190 A. 552, 554;  Collins v. Marquette Trust Co., supra, 187 Minn. 514, 246 N.W. 5, 6.

We have not held or intimated that the court does not have a right and a duty to scrutinize the discretion exercised by the guardian and to disallow the disbursements if it appears the guardian did not act in good faith (for the benefit of the ward rather than her own financial advantage) or upon substantial grounds for so doing.   The trouble with the proceeding under review is that the court refused to recognize any right in the guardian to exercise judgment in the premises and refused to hear any evidence bearing upon the propriety of what the guardian did.   That question will be before the court upon a retrial.

The order from which the appeal has been taken is reversed.

ASHBURN, Justice pro tem.

SHINN, P.J., and VALLÉE, J., concur.