Kaminer v. Kaigler , 113 S.C. 222 ( 1920 )

January 27, 1920. The opinion of the Court was delivered by The issue of law involves the efficacy of payments made by a guardian for his ward. The Circuit Court allowed the payments, and the representatives of the ward have appealed.

The circumstances out of which the controversy was born are these: A young woman named Isolette Kaminer, while yet a minor, married in July, 1912, a young man named L E. Kaigler. She died in August, 1914, not having reached her majority. In January, 1914, Isolette fell heir to $696, and her husband immediately qualified as her guardian, with his mother and brother as his sureties, and received the said sum of money. He gave no account of his trusteeship, was a worthless fellow from all accounts, and is now gone to parts unknown.

Isolette's father and sister and Isolette's aunt have demanded of the sureties on the husband's bond an accounting for the said sum of money. The Court allowed the plaintiffs' demand, reduced, however, by $510, constituted of these items:

Maintenance of Isolette by Mrs. Kaigler, 18 months . $320.00
Maintenance of Isolette by Mrs. Kaminer, 5 months ..   80.00
Personal service, Mrs. Kaigler to Isolette .........   30.00
For sum paid by Mrs. Kaigler for Isolette ..........   20.00
Funeral expenses of Isolette .......................   60.00
_______
$510.00

Judgment was awarded for the balance of $186.39, and five years' interest upon that sum.

The two exceptions (1) challenge the effectiveness of the aforesaid payment to acquit the liability of the bondsmen; and (2) deny that there was proven any express contract, as it is contended was necessary, by Isolette or her guardian to make the payments.

The rule laid down in Ex parte Aycock, 34 S.C. 257,13 S.E. 450, is this: "Where there is a legal or moral obligation on the part of one to render service to another, no such promise (to pay for the service) can be implied from the mere rendition and acceptance of such service."

There was no legal obligation on Mrs. Kaigler to maintain her adult son and his wife, one or both. The legal obligation was on the son to maintain his wife. The interesting inquiry is: Was there resting on Mrs. Kaigler such a moral obligation to maintain Isolette as to raise the presumption that she did so gratuitously?

"The standard of moral duty is to be found in the books of law rather than in those on moral science." Bishop on Contracts, sec. 94.

In some sense there is a moral obligation on all men to render assistance to a stranger even, and that without hope of recompense; the Good Samaritan was moved to act by the force of that obligation. But moral obligation, when put into action, assumed the character of an implied contract on the part of him who receives the benefit, "whenever such assumed promise is necessary as a foundation on which to enforce so much of natural justice as comes within judicial cognizance." Same authority.

Reference, therefore, must be had in every such case to all the circumstances of it, to find out if the natural justice of the cause brings it within our cognizance. In the instant case the testimony is very meager in essential matter; but we infer from the case and the argument that Mrs. Kaigler was well up in years, a woman of small means and little help; that her son, the husband, was a worthless fellow, who practically abandoned his wife and thrust her upon his mother to maintain. If so much be true, and if Isolette had means to pay for her support, and if all the circumstances show that so much was anticipated by the parties, then Mrs. Kaigler ought to be compensated.

Judge O'Neall expressed the opinion that a plaintiff, who maintained his wife's mother, did not bear to her so close a relationship as of itself to negative the legal implication of the liability of the woman's husband to the plaintiff for her maintenance. Trammel v. Salmon, 2 Bailey 310. So here Mrs. Kaigler's relationship to her son's wife was not such by itself as to rebut the general implication of law that the service which Mrs. Kaigler rendered was to be compensated. As suggested by the learned Judge, the case may be altered by other attendant circumstances. See, also, 40 Cyc. 2821.

Of course, if Mrs. Kaigler undertook the service to Isolette with no expectation of compensation and as a gratuity it is well established that what was originally intended for a charity may not afterwards be converted into a charge. That question must also be determined by the testimony elicited on the new trial.

But, granting that testimony may show a case where Mrs. Kaigler ought to be compensated, yet the record which is before us, and upon which the Circuit Court acted, does not make such a case. As said by Dunklin, Chancellor, "the testimony is loose, and inconclusive."Prince v. Logan, Speer's Eq. 34.

It is axiomatic that a trustee husband may not take the whole of a small fund into his hands, and pay it out for the maintenance of his ward wife, without any sort of leave of a Court to do so. It is, nevertheless, true that in exceptional cases a Court may condone such conduct, if in the first instance it would, on application to it, have permitted the expenditure. The testimony before us, however, does not make such a case. See Holmes v. Logan, 3 Strob. Eq. 33; Prince v. Logan, Speer's Eq. 33; McDowellv. Caldwell, 2 McCord Eq. 55, 16 Am. Dec. 635; Wrightv. Wright, 2 McCord Eq. 199; Houseal v. Gibbes, Bailey Eq. 486, 23 Am. Dec. 186.

The decree below is reversed, and the cause is remanded for trial pursuant to the rules we have indicated; and in that trial let all the items of disbursements be inquired into.