LIABILITY OF GUARDIAN UNDER. CONTRACT FOR BENEFIT OF WARD.

Court of Appeals for Makoning County.

#### Thomas Payne v. Frank Rech, as Guardian.

Decided, March 14, 1917.

*Guardian of Minor—Bight of Action Against, in Bepresentative Capacity.*

Wkere tke guardian of a minor contracts witk a tkird person for services to ke rendered in kekalf of suck ward or kis estate, and suck services are rendered, suck tkird person can not maintain an action at law to recover for suck services against tke guardian in kis representative capacity.

*Fred J. Seim*and *S. G. Simpson,*for plaintiff in error.

*J. S. C. Lyon*and *S. B. Mitchell,*contra.

Farr, J.

Thomas Payne, the plaintiff in error, brought an action in the municipal court of the city of Youngstown to recover from the defendant in error, Frank Rech, as guardian of his minor son, Leo Rech, for services claimed to have been rendered by said Payne by agreement with said guardian, in connection with a suit for damages brought by the nest friend of said minor for some personal injury claimed to have been sustained by. said.minor in an accident on one of the numerous railroads of said city of Youngstown. The petition in the court below alleges that said Payne, 'by agreement with said guardian, assisted in. the prosecution of said claim for damages in the way of making investigations, securing witnesses and otherwise aiding in the successful conclusion of the litigation incident thereto. Said cause was duly heard in the municipal court, from the judgment of which an appeal was taken to the Court of Common Pleas of Mahoning County where a trial to a jury resulted in a verdict for plaintiff. A motion for a new trial was made and sustained; application made and leave given to *61withdraw the answer, which was a general denial; a demurrer was then filed to the petition which was later sustained and the plaintiff not desiring to plead further, error is prosecuted in this court; the parties sustaining the same relation here as in the court below.

It will be observed that the issue raised here is whether a third person contracting with a guardian of a minor, whereby services are rendered by such third person in behalf of the estate of such ward can maintain an action against such guardian in his trust capacity, or whether suit can be maintained only against the guardian personally.

Judge Rock el observes in his Ohio Probate Practice, Yol. 2, Section 1402, under the head, "Employment of Attorneys, Agents,” etc., in part as follows:

‘ ‘ The guardian likewise has a right to employ agents wherever necessary, but allowance for these matters, rests largely if not entirely in the discretion of the probate court. ’ ’

Judge Y7oerner pertinently observes in his "American Law of Guardianship ’ ’ at page 185, in part as follows:

"As a general proposition, guardians can not by their contracts bind either the person or estate of their wards. Such contracts bind the guardians personally, and recovery thereon must be had in an action against them, not against the ward. *Rollins*v. *Marsh,*128 Miss., 116, 118; *Adams*v. *Jones,*8 Mo. App., 602; *Dalton*v. *Jones,*51 Miss., 585; *Elson*v. *Spraker,*100 Ind., 374.”

And to the same effect said author states the rule at pages 164, 272, 281 and 470, and at page 192 he observes:

"Actions on such contracts must be brought against the guardians personally, not against their wards. *Forster*v. *Fuller,*6 Mass., 58; *Stevenson*v. *Bruce,*10 Ind., 397; *Tobin*v.-, 2 Strobh. L., 3; *Hunt*v. *Maldonado,*89 Cal., 636.”

Likewise it is stated in 21 Cyc., at page 193 as follows:

*“Actions by Third Persons Against Guardian or Ward—Actions Against*Guardian—According to. the weight .of authority;. *62a suit against a guardian on a contract touching his ward’s estate is personal against him and he can not be sued on such contract in his representative capacity so as to make the estate of the ward liable to be taken on execution.”

And again at page 115, it is likewise stated that a guardian can not by his contract bind either the person or estate of his ward, even for the benefit of the ward, whether for support and maintenance or in the management of his estate, and that the guardian is personally and solely liable, and the text is supported by a large number of cases from more than a score of states. The foregoing text is supported by 15 Enc. of L. (2d Ed.), page 77. The Indiana law relating to guardianships is very similar to that of Ohio and the above cited case of *Elson*v. *Spraker,*100 Ind., 374, is in full accord witht the foregoing and cites the earlier cases of *Lewis*v. *Edwards,*44 Ind., 333; *Stevenson*v. *Bruce,*10 Ind., 397; *Clark*v. *Casler,*1 Ind., 244. To Massachusetts does Ohio owe her greatest debt for probate law and procedure, and the above case of *Rollins*v. *Marsh,*128 Mass., 116, is well in point in principle with the case at bar. In above case it is held that:

“A contract by a guardian for the support and care of his ward binds the guardian personally and not his ward.”

The foregoing is supported in principle by Elliott on Contracts, Vol. 1, Sections 522 to 526 inclusive. The case of *Hurd et al*v. *Ry. Co.,*4 N. P., 404, is in point with the case at bar and in which it was held that an action could not be maintained for attorney fees against the administrator of an estate or the guardian of minor wards heirs at law of such estate for legal services rendered in behalf of such estate. The above case was affirmed in *Connell*v. *Baumback,*18 C. C., 502, first section of the syllabus as follows:

“There is no cause of action that can be maintained against either of these representative parties, either the administratrix or the guardian, in their representative capacities.”

..It .is well settled in this jurisdiction that a suit can not be maintained against an executor or an administrator for serv*63ices rendered by an attorney in behalf of such estate. *Thomas, Adm’x,*v. *Moore et al,*52 O. S., 201, 205; *1 Rochet,*Section 507; *McBride*v. *Brucker, Adm’r,*5 C. C., 12; 3 C. D., 7; *Mellen*v. *West, Adm’r,*5 C. C., 89; *West*v. *Dean,*8 C. D., 779; *Lucht, Adm’r,*v. *Behrens,*28 O. S., 231; *In re McAlpin, Decd.,*8 Dec., 654, 656.

It is urged in argument, however, that such action may be maintained under favor of paragraph 5 of Section 10933, G. 0., which reads as follows:

“To pay-all just debts due from such ward out of the estate in his hands, and collect all debts due- to the ward; in case of doubtful debts, to compound them to appear for and defend, or cause to be defended, all suits against his ward.”

How less could a guardian’s duties be defined and still permit him to serve in a trust capacity for a minor, so frequently incapable of representing or understanding his own interests? The very nature of the relation between guardian and ward suggests the impropriety of permitting the guardian by contract to bind the ward’s estate in such manner as to render it liable to execution. The above section is not susceptible of such interpretation as to permit the maintenance of a suit against a guardian in his representative capacity.

The cases of *Kingsbury*v. *Powers,*22 N. E., 479; *Bemiss*v. *Bemiss,*110 U. S., 42; *In re Haynes,*12 N. E., 60; *Fillmore*v. *Wells,*15 Pac., 343; 18 N. H., 15; 21 N. H., 204, are cited by plaintiff in error as sustaining his right to recover from the guardian in his representative capacity but a careful examination of said cases discloses that they pass only upon the right of a guardian to employ counsel or incur other expenses in the interest of a ward’s estate and that such services are a proper credit against such estate, and in one instance, at least, that a court of equity would so decree. Said cases are correct in principle, but not in point with the case at bar. The reason for the rule that an action at law can not be maintained against a guardian as such is obvious; there can be no contractual relation between a minor and another person; he e'an not bind *64his estate nor can it be directly obligated except through the medium of the probate court,, created for the express purpose of safe-guarding all such interests. To hold otherwise would be to destroy in part, at least, the rather,delicate fabric of probate jurisprudence. Persons contracting with guardians if not aware of their representative capacity, have the right of action against such guardian personally, and are no worse off when the truth is.discovered. If fully advised, they must assume the risk which they voluntarily incur. The law of Ohio does not provide for the filing of a claim against the estate of a ward, but it was held in the case of *Turner*v. *Flagg*(Appellate Court of Indiana), 33 N. E., 1104, that where a person has a legal and equitable claim against the estate of an infant ward, he may present his claim against the guardian in the probate court and secure an order for the payment of such amount as the court may deem proper. It was likewise held in *Appeal of Price*(Penna.), 9 Atl., 856. It is certain, however, that he may maintain an action against the guardian personally, or act through the medium of the guardian’s account in the probate court.

There is no error in the holding of the court below, and it is therefore affirmed.

Pollock, J., and Metcalfe, J., concur.