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Kay v. Kay

Supreme Court of Arizona

April 17, 1939

HARRY KAY, Appellant,
v.
ELLA SEARS KAY, Administratrix of the Estate of J. M. (MARION) SEARS, Deceased; and THE ESTATE OF J. M. (MARION) SEARS, Deceased, Appellees

APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment affirmed.

Mr. Burt H. Clingan, for Appellant; Mr. J. Bolivar Sumter, on the Brief.

Mr. F. L. Zimmerman, for Appellees.

OPINION

Page 497

[53 Ariz. 337] ROSS, C.J.

The appeal is from as order sustaining a general demurrer to the complaint and from a judgment of dismissal. The appellant Kay insists that the court erred in its ruling. The complaint sets forth two causes of action. The facts upon which the first cause is based are, in substance, as follows: On June [53 Ariz. 338] 12, 1933, in the superior court of Maricopa county, J. M. Sears was adjudged an incompetent and a guardian of his person and estate appointed. Subsequently he requested his guardian to employ an attorney, or to furnish him funds out of his estate to do so, to secure his restoration to capacity, and the guardian refused to act; that Sears appealed to plaintiff, his son-in-law, for assistance, who agreed to and did advance, between July 19, 1933, and December 7, 1934, $1,050 for attorney's fees, court costs and other necessary expenses incurred in proceedings seeking to restore Sears to capacity; that the application was made in the guardianship proceeding (Cause No. 9541) by Ella Sears Kay, the daughter of the incompetent and wife of the plaintiff Harry Kay; that a hearing on such application was had October 3, 1933, and that the court refused to restore the said J. M. Sears to capacity; that the Supreme Court of the state, on appeal, affirmed such order, In re Sears' Guardianship, 44 Ariz. 408, 38 P.2d 308; that J. M. Sears died January 14, 1937, leaving an estate, in personal and real property, of a value in excess of $50,000; that Ella Sears Kay, defendant herein, was appointed administratrix of the estate on July 12, 1937; that a claim for $1,050 for attorney's

Page 498

fees, etc., was presented to the administratrix for allowance, and that she refused to approve it; that the judge of the court also, after a hearing thereon, denied the claim.

The allegations of the second cause of action are, in substance, as follows: That J. M. Sears, on January 29, 1929, made Perry W. Sears his attorney in fact to handle his estate, and that the said Perry W. Sears so acted up to about the 20th day of May, 1933; that during the time he collected income and profits from the properties and assets of J. M. Sears, invested, loaned and reloaned the profits and generally handled the affairs and business of the said J. M. Sears; that [53 Ariz. 339] about the month of February, 1935,nearly two years after he was adjudged an incompetent, the said J. M. Sears, believing that his attorney in fact had appropriated to his own use and benefit certain moneys and properties belonging to him, requested his guardian to bring an action for the purpose of discovering what properties and money his attorney in fact had appropriated and was concealing, but that the guardian refused to bring or assist in bringing any action whatever. It is then alleged that J. M. Sears made arrangements with plaintiff Harry Kay to advance money to defray the expenses of actions to discover and to recover from his said attorney in fact money and properties belonging to the said J. M. Sears; that the plaintiff in that behalf paid out the sum of $2,585.61; that proceedings in the guardianship cause (No. 9541) were had, resulting in the discovery of assets belonging to the said J. M. Sears, of a value in excess of $4,000; that a claim for said advances had been duly made out and presented to the administratrix, Ella Sears Kay, for allowance and had been disapproved by her; that the judge of the court had also disapproved such claim.

We consider the ruling of the court on the first cause of action. The general demurrer admitted the allegations were true for the purpose of testing the sufficiency of the facts to make out a cause of action. The proceeding for restoration to capacity is provided for in section 4143, Revised Code of 1928, and so far as material reads:

"Any person who has been declared insane, or the guardian or any relative of such person, within the third degree, or any friend, may apply by petition to the superior court of the county in which he was declared insane, to have his restoration to capacity judicially determined.... If it be found that the petitioner be of sound mind and capable of taking care of himself and his property, his restoration to capacity [53 Ariz. 340] shall be adjudged, and the guardianship of such person, if not a minor, shall cease."

This section of the statute provides that the insane person "may apply by petition" to be restored to capacity, or that his guardian or any relative within the third degree, or any friend may apply by petition for restoration. In this instance Ella Sears Kay, the daughter of the ward, made the application and her husband, the plaintiff herein, it is alleged under a contract with the ward advanced the money for attorney fees, court costs, etc., which he now seeks to recover from the estate of the ward.

The allegation that the expenses were advanced pursuant to a contract with the ward may be disregarded. The ward had been adjudged an incompetent. He was therefore not capable of contracting unassisted either as to the care of his property or of himself. Section 4144, Id.

If the Sears estate is liable for the advances made by plaintiff it is not on the basis of any contract with Sears. It is on the theory that such advances were necessary for the protection of the ward or his property and that he was under an obligation to remunerate those who made the advances. When necessaries have been furnished an insane or incompetent person, the law implies an obligation on the part of such person to pay for them. Collins v. Marquette Trust Co.,187 Minn. 514, 246 N.W. 5; Lyon v. Freshour's Estate,174 Mich. 114, 140 N.W. 517, Ann. Cas. 1915A 726, 45 L.R.A. (N.S.), 67; Rautenkranz v. ...


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