In re the Guardianship of Crowell

OPINION OP

PERRY, X,

CONCURRING IN PART AND DISSENTING IN PART.

One of the items appearing in the schedule of disbursements in the guardian’s account is as follows: “December 22, 1911, Bill L. A. Dickey (Voucher No. 12) $167.70.” The voucher in support of this item reads: “Honolulu, December 28, 1911. Received from W. C. Achi, Gdn. Maud K. Crowell, One Hundred and Sixty-seven 70/100 Dollars for fees and costs advanced re suit Mrs. Kruger et al. vs. Maud K. Crowell et al. $167.70. (Signed) Lyle A. Dickey.” In the probate cause entitled “In the Matter of the Estate of Maud K. Crowell, a Minor,” a circuit judge of the first circuit, in an order confirming the sale by the guardian of the ward’s one-third interest in certain real property situate in this city, specifically authorized Mr. Achi as guardian of the said minor “to pay and discharge out of said proceeds of sale * * * the sum of $167.60 to L. A. Dickey in discharge of his lien thereon.”

Ordinarily this showing, inclusive of the decree of a court of competent jurisdiction specifically authorizing the disbursement, would suffice to require the allowance *453of the item to the guardian in the settlement of his final accounts. It is in itself a strong showing that the payment was properly made on behalf of the ward. It is true, as a matter of law and of procedure, that in the consideration of the guardian’s final accounts the propriety of the payment in question may be reexamined in spite of the existence of the former decree; but this is a power to he carefully exercised. The former decree should not be lightly set aside. It is entitled to the respect and weight due to any decree of a conscientious judge passing upon the matter after a hearing. I can find in the record before us in the case at bar nothing to justify the revocation or modification of the former decree. The guardian testified in effect that the payment was made by him only after an examination which satisfied him that the expenditure was for the benefit of his ward and that if Mr. Dickey were to prove the facts before the court the court would compel the guardian to pay the claim. The record in L. No. 6684, which was admitted in evidence in this case by the trial judge (although for an erroneously limited purpose), shows that an action at law to quiet title was brought under our statutes by Gustave Rose and Helene Kruger, as plaintiffs, against Rosina Rose, Bertha Rumbel and Maud Kaikilani Chapman, a minor (the ward in the case at bar), as defendants; that Mr. A. G. M. Robertson, later chief justice of this court and always a member of the bar in high standing, was in that cause the attorney for the plaintiffs; that in the declaration it was represented that Maud was a minor and prayer was made that a guardian ad litem he appointed to protect her interests; that the circuit court appointed William A. Chapman, alleged father of Maud, as her guardian ad litem; that subsequently, upon a showing by affidavit that William A. Chapman was the stepfather and not the father of Maud and showed no interest in her or in her property *454rights, Annie Mattos, Maud’s mother by adoption, was appointed guardian acl litem in place of the said Chapman; that on behalf of Maud an answer was filed by Annie Mattos as guardian ad litem, Mr. Lyle A. Dickey, later a judge of the circuit court of the fifth judicial circuit and always a member of the bar in high standing, signing and presenting the answer as attorney for the guardian ad litem, and that in that answer the minor set up a claim to ownership in fee simple of an undivided one-third of the land described in the plaintiffs’ declaration; that an answer was also filed on behalf of each of the other defendants by competent counsel; that trial was had before the court without the intervention of a jury; that briefs were filed by the attorney for the guardian ad litem, by the attorney for Rosina Rose and by the attorney for the plaintiffs; that in that action Rosina Rose claimed the whole title to the premises in fee simple, the minor claimed an undivided one-third interest and the plaintiffs claimed an undivided two-thirds interest, the latter saying in their brief that it was of no concern to them who was the owner of the remaining one-third but nevertheless arguing to the effect that Maud was not the owner of that one-third; and that the decision and decree of the trial judge was that the minor was the owner of an undivided one-third interest in fee simple. Throughout the proceedings in that action at law there is not discernible any trace of collusion between the plaintiffs and any of the defendants nor is there any room for the thought that the action was not instituted in good faith in order to secure a determination of the rights of the parties or that Judge Dickey did not devote his undivided attention and efforts to securing for his client as favorable a judgment as possible. I am satisfied from the evidence furnished by that law record not only that Judge Dickey’s services were rendered in the utmost good faith *455but that they were for the benefit of the minor and that they were reasonably worth at least the amount of compensation which hé received, which would seem to have been the sum of $100. I find no reason in the evidence now before us for believing that the expenditure of $67.60 for costs and expenses on behalf of his client was unnecessarily incurred by Judge Dickey.

I think that the whole of the item of $167.60 ought to be allowed to the guardian.

It is said that the guardian’s charge of the sum of $10 as a “fee drawing deed from C. Lai Young” should be disallowed on the ground that the duty devolved upon C. Lai Young and Mattos to furnish the deed, this being a reconveyance of land improperly accepted by them from Maud while she was still a minor. Conceding that the duty to draw and furnish the deed rested primarily upon those who should. reconvey, it seems to me, nevertheless, that it was an act of commendable industry and watchfulness on the part of the guardian to prepare the deed himself and secure its execution while C. Lai Young and Mattos were confessedly in the mood to make the reconveyance. Further judicial proceedings to compel the execution of a deed of reconveyance would have been at least as costly as the mere drawing of a deed and probably more costly and the delay involved in further proceedings not accompanied by the tender of a form of deed might reasonably have seemed to the guardian to have left the way open for the proposed grantors to change their attitude or to cause further delays resulting possibly in intervening-deaths with their resultant complications. I think that no fault is attributable to the guardian for avoiding all unfavorable chances by immediately drawing the deed himself and presenting it for execution and that he is entitled to reasonable compensation for his legal services in drawing the deed.

*456The contract of the minor to pay Mr. Achi for his services in equity suit No. 1796 for the setting aside of the deed to C. Lai Young and Mattos was, of course, avoidable and has been avoided by the acts of the ward. The guardian cannot succeed in any claim to compensation under that contract. The institution of the suit in equity was perhaps unnecessary (it was one method of disaffirming the deed) and, in the light of subsequent events as they have developed, it might be that upon a mere demand a reconveyance would have been secured. The evidence is not clear as to whether the guardian made any efforts prior to the suit to secure a reconveyance but assuming that he did not and that he acted too hastily in instituting the suit and even that the institution of the suit was largely for the purpose of securing the large fees contemplated by the voidable contract just mentioned, it nevertheless remains true that the suit accomplished for the ward all that the ward was entitled to and all that could have been accomplished by a mere demand. If a demand had been made resulting in the execution of the deed prepared by the guardian, the services so rendered by the guardian would none the less be legal in their nature and such as to justify and require the allowance to him for those services of compensation additional to his statutory commissions and in that event the sum of $50 would clearly have been reasonable compensation for those services. While the amount claimed, to wit, $776.15, should be disallowed, the guardian should, in my opinion, be allowed in lieu thereof the sum of $50 for his services in preparing the deed and in securing a reconveyance.

Nor is there anything in the evidence of Mr. Rawlins to require a different conclusion. He did not attempt to testify that he had knowledge that a demand, without suit, would have been successful. His evidence was that “in all probability a demand upon Lai Young would have car*457ried out the same thing” and that “a demand upon Lai Young would probably have accomplished the same end.” He simply gave his surmise based upon the facts as he knew them at the time of testifying. His statements in reality were not evidence and should not have been admitted.

I concur in the allowance to the guardian of the charge of $50 for securing the sale of the ward’s property, in the disallowance of the compensation claimed for collection of rents and for the preparation of the final accounts and in the disallowance of all commissions.