Hines v. Giambastiani

The ward herein was discharged from the United States army at Camp Lewis, Washington, in January, 1918, for disability, and was at once brought back to Los Angeles, his home, by his brother, who is respondent guardian herein. Deeming his brothér incompetent to care for himself or his property, respondent took charge of him, managed and paid charges and expenses of his property affairs and supported and maintained him, chiefly out of respondent’s private resources, until respondent was regularly appointed as his guardian on October 9, 1929. During this interim the ward was owner of a one-fifth interest in a residence property and owned some stock in a feed and fuel corporation of which respondent was manager,

On May 27, 1932, on appellant’s petition, the probate court entered an order exempting funds received from the veterans’ administration from payment of claims of creditors. On February 16, 1933, on respondent’s petition, the court entered an order allowing him to reimburse himself for these advances out of moneys received from veterans’ administration under the provisions of the World War Veterans Act, or from any source, but only after sufficient funds coming into the estate have been used for the proper support and maintenance of the ward. On March 24, 1933, respondent filed his second account current, showing expenditures during the period in the total sum of !$645 and receipts aggregating $3,589.14, of which amount the sum of $2,645.81 was received from the veterans’ administration under said act. Such account also showed a credit of $2,278.64 against the former balance of advances. To this account appellant, under 'authority of the act above mentioned, filed objections, and after a hearing and trial the probate court overruled all objections and approved and settled the second account, on August 5, 1933. By this second account and the order settling it respondent was allowed a credit of $2,278.64 against the balance of $8,295.22 previously established as a balance of his advancements on behalf of the ward, leaving a present balance of $6,016.58 on such previous advancements, with the sum of $500 funds on hand in bank to the credit of the ward, together with a continuing income

After hearing on this account and objections thereto, the probate court filed findings and conclusions, wherein among other matters the court found that the claim of respondent for past advances before appointment was not the claim of a creditor; that respondent acted as “guardian de facto, or as trustee” of said ward from the time of the latter’s discharge from the army in 1918 until the time of appointment of respondent as guardian in 1929; that the expenditures made by respondent on behalf of the ward prior to the appointment in 1929 were not voluntary; that the funds received from the veterans’ administration were not exempt from respondent’s claim for reimbursement and that such claim is a proper charge against the estate and any funds coming into the estate from any source whatever. From the order settling this second account this appeal is taken.

On this record appellant predicates three claims of error, namely: (1) That the moneys advanced and maintenance furnished by respondent prior to his appointment were voluntary, and that it was error to decide to the contrary. (2) That respondent’s claim for such past advances and expenses paid prior to his appointment was the claim of a creditor, and that it was error to decide contrariwise, thereby avoiding the effect of the exemption provided in the World War Veterans Act. (3) That respondent did not act as guardian de facto prior to his appointment, and that it was error so to decide. As an alternative, appellant claims error in allowing credit to respondent as a de facto guardian for sums in excess of the amount received by him for the ward during such de facto period of guardianship.

As claimed by appellant and conceded by respondent, it is the recognized rule in this state that orders settling guardian’s accounts are not conclusive and do not preclude the probate court at hearings on subsequent accounts from a reexamination of former accounts, nor from correcting, revising or modifying the amount of any item or from entirely disallowing the same. (Guardianship of Cardwell, 55 Cal. 137 .)

Appellant’s first point is that the court erred in finding that respondent’s advances and expenditures of money for his brother up to his appointment as guardian were not

The next two questions are so interdependent that the answer to one will determine the answer to the other, and we shall therefore consider them together. For if the items for which reimbursement is sought and which have been allowed represent the advances made and expenses

The probate court found that respondent acted as “guardian de facto or as trustee” of his brother from 1918 to the time of acquiring his de jure status in 1929. An examination of the transcript of the evidence taken reveals substantial evidence to support this finding; hence under the well-known rule this court will not substitute another or different one. As quasi guardian or guardian de facto acting with bona fides, one is entitled to reasonable and proper credits for maintenance of the beneficiary and for expenditures incurred on his account. Such a guardian is a trustee of the beneficiary’s estate, and the accounting must be deemed in the nature of an accounting in equity, where it is presented in the probate court subsequent to the inception of the de jure status, and must be determined on equitable principles the same as in an action in equity for an accounting by such trustee. The criterion for determining whether a past maintenance should be allowed is whether a chancery court would have authorized it in advance. (In re Beisel, 110 Cal. 267 [ 40 Pac. 961 , 42 Pac. 819 ] ; Estate of Schluter, 209 Cal. 286 [ 286 Pac. 1008 ] ; Estates of Boyes, 151 Cal. 143 [ 90 Pac. 454 ]; Estate of Clanton, 171 Cal. 381 [ 153 Pac. 459 ].) A guardian de facto is subject to all the duties and liabilities of a guardian. (In re Smith’s Appeal, 158 Mich. 174 [ 122 N. W. 564 ].) The probate court having once found that respondent was guardian de facto, would, on natural and logical sequence, conclude that respondent’s claim of reimbursement for past expense and maintenance was not the claim of a creditor but was allowance or credit sought in an accounting pre

The contention of appellant that it was error to allow respondent' for expenditures in excess of the amount received by him for his ward when later claimed as reimbursement in his accounting does not present a question of law. The question of amount and necessity or propriety of advancements is one of fact for the probate court to determine on proofs before it, and if the amount so advanced is found to be not disproportionate to the value of the ward’s estate or his condition of life, it should be allowed. (Sec. 1502, Probate Code.) The court below by implication found that the amounts allowed were proper under this rule of law, and such finding will not be here disturbed.

Some considerable stress is laid by appellant on the claim that moneys received from the veterans’ administration for the incompetent herein are exempt from the claim of reimbursement under the World War Veterans Act. Section 22 of that act provides that “The compensation, insurance and maintenance and support allowance payable . . . shall not be subject to the claims of creditors of any person to whom an award is made.” A claim of a de facto guardian for expenditures on behalf of the ward, set up in his subsequent accounting, is not the claim of a creditor. It is a charge arising during administration of the ward’s affairs and estate, the same as if under a de jure guardianship. Without a previous de jure guardianship, advances made or claims created may not be paid out of funds derived from the veterans’ administration. Those properly made by a guardian de jure in course of his administration may not be paid from that source because the funds are only exempted from claims of creditors of the beneficiary soldier. (Estate of Ferarazza, 219 Cal. 668 [ 28 Pac. (2d) 670 ].)

We find no error in the proceedings in the probate court; nor do we find anything therein that would operate to the detriment or prejudice of the incompetent. Over the long period of his disability he has been faithfully eared for and supported by respondent, and the order appealed from

The order is affirmed.

Stephens, P. J., and Desmond, J., concurred.