
    Thomas T. Glidewell v. Mary A. Snyder and John F. Snyder.
    1. Allowance for Necessaries of IVard.—The mere fact that a guardian is stepfather to his ward does not vitiate an allowance made by the court for -his providing the ward with boarding and clothing.
    2. Jury Trial on Guardian's Report.—Trial by jury is not a matter of right in case of exceptions to the report of a guardian; and in vacation would be impracticable.
    Filed April 7, 1881.
    Appeal from Marion Circuit Court.
   Opinion of the court by

Mr. Justice Woods.

The appellant, as guardian of the appellee, Mary A. Snyder, filed in the court below, at its September term, 1877, a report of his doings in the matter of said trust, showing, among other things, that his said ward, though yet a minor, had intermarried with her co-appellee (who may, perhaps, be presumed to be of lawful age, though it is not so alleged), and that he had been unable to accomplish an amicable settlement of said guardianship with his said ward and her husband.

The appellant, by this report, charged himself with interest on the sums in his hands to the amount of $158.33, and among the items of credit for “ expenditures in her behalf” made, claimed the following: Voucher No. 8, Henry Birt, $274.40.” The voucher referred to does not appear in the record except as an item of the evidence adduced on the trial. The following entry of record was made on the filing of this report, viz: “ And the court, having examined said report, now approved the same, and said guardian is continued in his said trust, as to his said ward, Mary A.”

Afterwards, at an adjourned term of the court, in April, 1878,. the appellees filed exceptions to said report, which, omitting formal facts and the part concerning interest, were of the tenor following, viz:

Second. Your petitioners would further represent that Henry Birt is the step-father of this ward, your petitioner, Mary A. Syn-der ; that voucher No. 8, filed by said guardian, allows said Henry Birt two hundred and seventy-four and dollars ($274.40) for boarding and clothing said ward, without right and contrary to law» Wherefore, your petitioners would ask that «aid guardian be compelled to pay to this ward the additional sum of $274.40 which he has wrongfully allowed to said Henry Birt for boarding and clothing his said ward, etc.

The appellant filed a demurrer to the exceptions on the alleged ground that the same do not state facts sufficient to constitute any good or sufficient exception to the said report. This demurrer, being addressed jointly lo both exceptions, it might ordinarily be said,, was properly overruled if either exception was well stated. Counsel, however, on each side, have argued only in reference to the second exception, on which alone an issue of fact was found and submitted to the jury for trial, the court, in the submission of the cause to-the jury, having expressly excepted from the submission and reserved to itself the question raised on the exception concerning interest. It may be observed, too, that the first exception presents-no issue of fact concerning the item of interest, but, simply restating the figures as given in the report, alleges that only six per cent, interest has been accounted for, while ten per cent., it is-claimed, should be charged. No averment is made that the guardian received, or by proper diligence could have obtained, more than the sum with which he had charged himself, nor that he had used the trust funds in his own business, nor any other fact tending to show that he should be held to account for more than the lawful rate of interest. This exception must therefore be regarded as tendering an issue of law upon the facts stated in the report concerning the item of interest, and so being itself of the nature of a demurrer, was not the subject of demurrer.

The second exception, however, was an attempt to present an / issue of fact; and under the circumstances we are fairly called upon to consider and decide upon its sufficiency.

The only fact attempted to be shown by this pleading, which was not shown by the report itself, is that said Birt was the stepfather of the ward. This was not enough to show that the allowance made by the guardian to said Birt for her board and clothing, was “ without right and contrary to law.” The appellant’s report had been approved by the court, and, supported as it was by the presumption that the court had examined and approved the grounds and consideration on which the guardian had made the allowance and payments which are complained of, the report was to be treated as prima facie correct. The State ex rel. Nave v. Wilson, 51 Ind. 96 ; Goodwin v. Goodwin, Executor, 48 Ind. 584; The State v. Brutch, 12 Ind. 381; Barnes v. Bartlett, 47 Ind. 98.

A father may be allowed for the support of his child out of the child’s estate, in a proper case; and the mere fact that Birt was the step-father, was not conclusive against his right to compensation for clothing and boarding his step-daughter. Hoose v. Bocheschsil, 6 Ind. 66; The State ex rel Druliuw v. Clark, 16 Ind. 97; Myers v. The State ex rel. Appleton, 45 Ind. 160; Kinsey, v. State, (in 70 or 71 Ind).

It is to be noted, however, that it is not shown that Birt was the step-father at the time he furnished the board and clothing for which the appellant paid him. The language of the exception is, That Henry Birt is the step-father of this ward; ” which means no more than that at the time of filing the exception he was such step-father.

The demurrer should have been sustained. But the same having been overruled, the appellant filed an answer in general denial, and the issue so formed was submitted by the court over the objection of the appellant, to a jury for trial.

Whether a jury trial was proper, is the next question urged on cur attention, and as the question may arise again in this case, as as well as in others, it is proper that we decide it.

Section 188 of the act providing for the settlement of decedents’ estates, requires that “Trials by jury shall be allowed at the request of any party in all cases where there is an issue of fact.”

Sections 13, 23 and 26 of the act touching the relation of guardian and ward, provide that suits on the bond of a guardian shall be governed by the law regulating suits on the bonds of executors and administrators ; that, in confirming the sale of real estate by a guardian and directing a conveyance, the court shall be governed by the law concerning sales and conveyances of real estate by executors or administrators, and that sureties on the bond of a guardian may be discharged from future liability therein under the same rules and regulations as are applicable to the bondsmen of executors and administrators. But, other than these, there is no provision in the guardian's act for a jury trial, nor any provision incorporating into that act the 188th section of the former act.

Perrin & Davis, for appellant.

Julian & Julian, and Mark A. Smith, for appellee.

Executors and administrators can be removed only by the court. 2 Davis, R. S., 502, secs. 22-32. But a guardian may be removed by the court, or by the judge thereof in vacation. 2 Rev. Stat., 1876, p. 591, sec. 11. But applications for removal must often involve the formation of issues of fact. In the case of an executor or administrator, a jury may be demanded to try the issues. In the case of a guardian, it is manifest that it could not be demanded as a matter of right, and upon a hearing by the judge in vacation, it could not be granted. It is hardly necessary to say that section 20, article 1 of the constitution, and section 320 of the code do not apply.

We conclude, therefore, that a jury trial is not a matter of right in case of exceptions to a guardian’s report, or in the trial of any matter connected with the administration of the trust, unless there be some statutory provision therefor, as in sections 13, 23 and 26 before referred to. But we do not decide that the court, of its own motion, may not submit any question of fact in such matters to a jury, and take their verdict thereon.

In this case, however, no issue of fact was formed which could properly have been submitted to a jury, and the verdict rendered furnished no basis for a judgment between the parties.

For the error of the court in overruling the demurrer to the second exception to the report, the judgment of the circuit court is reversed with costs, and with instruction to sustain the demurrer to said exception.  