In re the Guardianship of Nelson

Weaver, J.

It is well at the outset to clearly define the questions, upon which we are asked to pass. Though there is some slight suggestion in argument of other reasons why the appellee should be removed from the guardianship, they are not made grounds of the relief asked nor were they considered or tried in the court below. Each of the two applications for the removal of the guardian is based upon the single complaint that appellee had failed to make report to the court within the time prescribed by statute. The decree of the trial court recites that this is the only question presented and decided. Counsel for appellant in their brief submitted upon these appeals also thus limit the question by stating that the action .is “to remove the guardian for failure to make two successive annual reports” and that the issues to be considered are, *120 first, “whether the district court had any discretion about removing a guardian where it appears that he has failed to make annual report of his doings;” and, second, “whether it was not an abuse of discretion to deny such removal” in the present instance. To the propositions thus presented we shall confine our attention.

1. Guardianship: failure to make timely report: removal: discretion. I. Has the court any discretion to refuse an application for the removal of a guardian where one or more failures to file yearly reports in due season are proven or admitted? The statute (Code, section 3203) n ' requires a guardian to make report to the court at least once a year and failure to do so subjects him to a penalty and is made “ground for removal.” The language of the statute making the failure a “ground for removal,” but not providing the guardian shall be removed, indicates that, while such default shall be sufficient justification for an order of court removing him from the trust, such action is yet a matter within the reasonable discretion of the court acting in view of the particular circumstances of the case under consideration. It is proper, and it is the duty of the courts to insist that guardians show substantial obedience to statutory regulations, but it is conceivable that failure to report promptly may occur under circumstances involving no lack of good faith, and investigation may demonstrate that notwithstanding the omission the trust has been prudently and wisely administered, and that the proper protection of the ward’s “interests” does not require any change in the guardianship. It would be an unwise law which would deny the court authority to look into the merits of each case and to remove or refuse to remove the guardian according as the safety of the trust and the interests of the ward shall seem to require. None of our decisions requires us to construe the statute more narrowly than is here suggested. In McIntire v. Bailey, 133 Iowa, 418 , referred to by counsel* the application was not, as in *121 the instant ease, grounded upon the sole complaint that the guardian had failed to make yearly reports in due time, but upon the charge that he had wholly converted the trust funds to his own use, had presented no account thereof and had neither money, property, nor funds to which he could point as representing the trust estate. The view we here express that the statute does not deprive the court of discretion in such cases finds support in precedents from other jurisdictions. Indeed we find none which holds that removal for such omissions is mandatory where the guardian appears and is ready and willing to make full accounting and report. In passing upon a similar question it has been said that the Supreme Court will not interfere with an order removing or refusing to remove a guardian unless it appears that the trial court abused its discretion. Johnson v. Metzger, 95 Ind. 307 . It has also been said that trial courts are allowed liberal discretion in such matters, and that their decisions will not be reversed on appeal unless it be made to appear that palpable injustice has been done. King v. King, 73 Mo. App. 78 . See, also, Ledwith v. Trust Co., 2 Dem. Sur. (N. Y.) 439. Other authorities have applied the very equitable rule that unless the statute makes the removal of a guardian mandatory on a showing of failure to report, an opportunity should be afforded him to make the overdue report and show if he can that the ward’s interests have suffered no prejudice by the delay. 9 Encyclopedia Pleading and Practice, 923. Indeed, when counsel for the appellant came to a discussion of the legal propositions in their printed brief they say: “A statute making the failure to report once each year ground for removal of a guardian leaves discretion as to such removal, where it appears there has been such failure.” Elsewhere they say: “Ordinarily, the matter of removal of a guardian rests in the sound discretion of the court appointing him, but this is a legal discretion which it is the duty of this court to correct where there has been an abuse thereof.” *122 With this conclusion there can be no serious quarrel, and it leaves this case to turn upon the single inquiry considered in the next paragraph.

2. Same: discretion of court: excuse of guardian. II. Considering the circumstances shown in evidence, did the trial court abuse its discretion in denying the application for the removal of the guardian? In considering this question this court is required to indulge in every reasonable intendment supporting the propriety of the rulings appealed from. The presumption of regularity of action by the trial court is peculiarly persuasive in probate and guardianship proceedings under our system of practice, in which those courts come to have more or less familiar knowledge of the several -estates and trusts being administered within their jurisdiction, and are in far better position to know and appreciate the necessity and propriety of the orders made by them and the trustworthiness of persons holding such trusts than is possible for this court to attain from an examination of the printed record.

The appointment of the guardian as we have before noted, wa$ made in January, 1906. On November 27, 1907, no report appearing on file, the petition was filed for his removal. The guardian immediately appeared with a report covering the -entire period of his trust to that date, and made a showing that he had prepared a report within one year from his appointment and left it with his counsel to -be filed and supposed that the duty had been performed. Counsel corroborate the statement and testify to their best recollection and belief the report was in fact left with the clerk. This showing and report were assailed by motion and demurrer, because they were confessedly made after the guardian- had become liable to removal. The attacks upon the report were finally overruled, the report approved, and the petition for removal of the guardian denied on December 4, 1907. The court appears to have inquired *123 into the financial responsibility and personal fitness of tbe guardian for the trust imposed upon hiin and, as we must assume, also satisfied itself that tbe delay in filing tbe report bad not prejudiced tbe interests of tbe ward. Under such circumstances there was no abuse of discretion in refusing tbe demand for tbe guardian’s removal. As to tbe refusal of tbe second demand, there is even less ground for criticism. Tbe last prior report, as we have already seen, was presented to tbe court November 27, .1907, and meeting such resistance as hereinbefore shown it was not disposed of until December 4, 1907. Tbe next report was filed December 1, 1908, and was therefore within one year from tbe approval of tbe former report, but was one year and four days after such prior report was filed. To this report as to tbe former no objection or exception was taken except that it was filed out of time. Appellant’s abstract herein states it to be “conceded for tbe purpose of the bearing that tbe guardian was guilty of nothing except failure to report.” It must therefore be assumed that tbe showing made by tbe guardian as to tbe condition of tbe trust estate and bis management disclosed no substantial ground of exception thereto, save only as to tbe date of its presentation. While it may be true, as argued by counsel, that tbe statutes providing for report at least once a year contemplate that not more than twelve months shall intervene between tbe filing of successive reports, yet assuming, as we must, that removal for failure in this respect is subject to tbe legal discretion of tbe trial court we are very clear that refusal to order such removal for no other' reason than a delay of four, days in filing a report which is otherwise correct and satisfactory and where no prejudice is alleged or shown to tbe ward or to tbe estate is not an abuse of such discretion. Tbe first report was filed during a term of court, and was disposed of before that-term was finally adjourned. Tbe second report was filed during tbe corresponding term one year later upon advice *124 of counsel that, if presented during such term, it would be timely. For the purposes of the case we may concede that the advice was incorrect and that the court if so inclined could have penalized the delay by removing the guardian, but if in view of the circumstances the court was satisfied that the guardian was making an honest effort to obey the law, and that not the slightest harm or injury had resulted to any party in interest, a refusal to make such order was not only well within the court’s discretion but was also eminently just. From some matters stated in the abstracts and arguments it seems that the ward is disposed to deny that he is a fit subject for guardianship and that he has instituted or proposes to institute proceedings to be relieved therefrom. That controversy, if one exists, is not before us, and has no bearing upon the present appeals. We have to take the adjudication of the ward’s incompetence as a verity until in some suitable proceeding that fact is again put in issue, and is regularly submitted to our review.

III. Errors have been assigned upon the rulings of the trial court in the admission of evidence. We shall not prolong this opinion for their discussion, because the essential facts upon which our disposition of the cases turn are such only as are admitted by' appellant’s own showing or express concession.

We find no reason for disturbing the orders entered by the trial court, and they are therefore affirmed.