Reversing.
James G. Ward is a feeble minded man and was duly so adjudged in the Butler circuit court about 20 years ago. R.B. Kimbel is a cousin of James G. Ward, and Ward has lived with him for the last 25 years. Several committees have been appointed from time to time for the ward. W.S. Holmes was appointed about eight years ago and took charge of the estate. On October 14, 1924, R.B. Kimbel brought this suit against Holmes, as committee, alleging in his petition that up to the appointment of Holmes he had been paid reasonable compensation for taking care of the ward, but that since Holmes had been appointed be had failed and refused to pay him for his services and had been negligent in looking after and caring for his ward, and that plaintiff's services for the ward were necessary and reasonably worth $300 a year. The circuit court sustained the defendant's demurrer to the petition. On appeal to this court the judgment vas reversed. Kimbel v. Ward's Committee,
A very different case is shown by the record now from that before the court when the allegations of the petition stood admitted. The facts now shown are these: When the present committee was appointed, no estate came into his hands except a tract of land of something over 200 acres, on which taxes were due and unpaid and the land had been sold for taxes. The place was also in bad repair. During the eight years the present committee has collected the rents of the place, and after paying taxes and the like, there remains in the bands of the committee about $500. This is the whole estate of the ward, except the tract of land. During the whole time that the plaintiff kept the ward, up to the appointment of the present committee, he received from the previous committees about $500 in all. While the ward has not a good mind, he is strong and able to work, and in fact does work on the plaintiff's farm. As to how much, if any, the reasonable cost of keeping him exceeds the reasonable value of his services on the farm, the proof is conflicting. *Page 519 After Holmes was appointed Kimbel advised him not to come to his house to see his ward. Although Holmes made efforts to get the ward to come to see him, these efforts were fruitless, and he told the plaintiff that he would not pay him anything without an order from court. Thus things ran along until this suit was brought. It also appears in the evidence that the plaintiff had procured from James G. Ward a deed for his tract of land, and that Holmes, whose wife was a relative, had brought a suit and had this deed set aside. The feeling between them was not good after this.
Section 2153, Kentucky Statutes, provides:
"The power and duty of the committee of an idiot, lunatic, imbecile or incompetent person shall, in all respects, be the same as those of the guardian of an infant, except as to education. But the court may appoint a person other than the committee to take charge of the person of the idiot, lunatic, imbecile or incompetent person when he is not confined in an asylum, and may order his committee to make necessary provision for his support."
The powers of a committee being in all respects the same as those of the guardian of an infant, it becomes necessary to define the powers of a guardian under such facts as we have here. In Chapline v. Moore, 7 T. B. Mon. 170, the court thus stated the rule:
"A court of equity never sanctions the conduct of a guardian to break in upon the capital of the infant's estate, by his own authority; the court may be applied to under extraordinary circumstances, and has rarely permitted by its own order a reduction of the capital."
Again in Bybee v. Tharp, 4 B. Mon. 320, the court again said:
"The law will not allow the guardian, but at his own peril, to expend upon the ward more than the income of his or her estate, allowing him, however, to look to future years for remuneration as to any casual excess.
These rulings are in keeping with the common-law authorities:
"The common law was punctilious to preserve the difference between real and personal estate; *Page 520 principally, perhaps, because of the difference in the law of succession. It was not permissible for a guardian to change real estate into personal, or personal into real, except for reasons which had been passed upon by the court. He could not therefore sell real estate of the ward, except in compliance with an order of court; and this rule still generally exists, unless altered by statute. Nor can the guardian mortgage the premises, nor by his acts or agreement impose a lien or other incumbrance upon it." 12 Rawle C. L. p. 1127, sec. 26.
What the committee could not do directly he could not do indirectly. The ward has no estate except the tract of land and about $500 in the hands of the committee. The committee cannot charge the land in any way. The ward is now about 50 years old, and as he gets older will no doubt be less able to work. It is therefore important that his estate should be preserved, and a sale of his land should not be ordered for his maintenance, unless indispensably necessary. Section 2150, Kentucky Statutes, provides:
"The circuit court may, on the application of a committee, order the sale of the whole or any part of the real estate of an idiot, lunatic, imbecile or incompetent person, when indispensably necessay for the payment of debts, or for the maintenance of such person and his family, and where the personal estate, with the rents and profits of the real estate, are not adequate for that purpose, may settle and distribute the estate in the manner provided for the settlement and distribution of the estates of insolvent decedents."
The sale of the whole or part of his real estate may be ordered when indispensably necessary for the support of the ward in an action by the committee against the ward for this purpose.
The instructions of the court to the jury are not made part of the record and so cannot be considered. But on the whole case the judgment is not warranted by the evidence; no judgment should have gone against the committee for a greater amount than the income of the estate on hand. On the return of the case to the circuit court, it will be transferred to equity. Persons of unsound mind, like infants, are under the special protection of *Page 521 courts of equity, who are charged with the duty to see that they are not prejudiced by any act or omission of those representing them. Galloway v. Hamilton, 1 Dana, 576; Newland v. Gentry, 18 B. Mon. 666; Robinson v. Talbot, 78 S.W. 1108, 25 Ky. Law Rep. 1914. The question presented now is how shall the income on the ward's estate be appropriated, and this is a matter to be determined in equity, that justice may be done the ward and his interests properly protected. The court will determine from all the evidence what allowance should be made the plaintiff for his care of the ward and direct its payment by the committee, not to exceed in all the amount in the committee's hands and having in view what he was paid for such services before the present committee's appointment, the condition of the ward at the time, and all the circumstances. The plaintiff cannot maintain any claim against the committee in excess of the income from the land; for he was bound to take notice of the law that the land could not be sold or charged in any way, unless the court had so ordered. If the plaintiff is not willing to continue to keep the ward on the terms fixed by the court, it will be the duty of the committee to make some other arrangement for his keep, and if necessary to apply to the court for its direction in the matter.
On the return of the case to the circuit court, the proof taken on the trial will be treated as the deposition's of the witnesses after the case is transferred to equity, and each party will be allowed to take such further proof as he may desire.
Judgment reversed and cause remanded for further proceedings consistent herewith.
