In re Estate of Kincaid

I dissent. The court found: “That notwithstanding the fact that said Kincaid arrived at his majority on the twenty-fourth day of May, 1890, by common and mutual consent of said Kincaid and the said Gordon the relationship of guardian and ward continued, and the said Kincaid received from the said Gordon the amounts of money set forth and contained in the said account, subsequent to the said twenty-fourth day of May, 1890, and the said Gordon received for the account and benefit of said Kincaid, as such guardian, the sums of money and property set forth and contained in said account.”

And it is further found that all sums of money paid out for or advanced to said Kincaid, subsequent to said date, were paid and advanced “at the special instance and request of said Kincaid, and were so paid and advanced by said Gordon, in his capacity as guardian,” and that as to said account no other relation ever existed between the parties.

The material and substantive question arising and presented by the appeal is, whether the superior court, sitting in probate, had jurisdiction, in settling the account, to adjust and settle, as a part thereof, the transactions accruing and had between Gordon…

Alexander Gordon was appointed guardian of Archer Kincaid, a minor, December 23, 1882. Kincaid became of age May 24,1890. The guardian upon assuming the duties of his trust received for his ward one thousand dollars in cash, and no other property came to his hands during the minority of his ward. This money was entirely consumed in the support and education of the ward before he reached majority, therefore, when the guardianship ceased Gordon had in his possession no estate whatever of the ward.

The guardian had, however, at the request of his ward, and out of friendship to him, given him educational advantages far beyond what would have been justified by the means of the ward in his hands. And after Kincaid became of age Mr. Gordon continued to advance money for that purpose; Gordon paid his expenses at the University and at the Hastings Law College until his former ward was admitted to practice law in all the courts of the state.

*204 In 1894, and long after the ward reached his majority, a decree of distribution was made in the estate of Kincaid’s mother, of which estate Gordon had charge as executor, by which nearly five hundred dollars in money was distributed to Kincaid.…