
    SCATTERGOOD v. INGRAM.
    
      One sustaining family relation to another — Cannot recover for services rendered the other, when — Guardian may claim for services rendered ivard, when — Allozvance for services under Section 10953, General Code.
    
    1. The doctrine that where two persons sustain to each other a family relation one cannot recover against the personal representatives of the other on account of services rendered in that relation except on proof of a contract to make compensation therefor, does not apply to a claim by a guardian for services rendered to an imbecile ward. p
    2. In such case allowance for services and compensation is by Section 109S3, General Code, to be determined by the court settling the guardian’s account, and, it not being a personal claim against the ward, it need not in case of his decease, be presented to his personal representatives.
    No. 121645
    Decided April 2, 1912.
    Error to the Circuit Court of Mahoning county.
    Facts are stated in the opinion.
    
      Messrs. Metzger & Smith, for plaintiff in error.
    Plaintiff in error contends that services rendered by Sarah E. Ingram in caring for and nursing her mother and for boarding her mother, while her mother was 'in her, Sarah E. Ingram’s home, is conclusively presumed to be rendered gratuitously unless there was an express contract entered into between the said mother and daughter, whereby one was to pay for such board, care and nursing, and the other to receive pay for the same. Hinkle v. Sage, 67 Ohio St., 256; Jurling v. Garner, 8 N. P., 277, 11 Dec., 439; McCollister v. Moore, Dayt., 247; In re Dunn, Goebel, 297; Drewry v. Rightmire’s Admr., Dayt., 112; Poorman v. Kilgour, 26 Pa. St., 372; Hertzog v. Hertzog, 29 Pa. St., 465; Finch v. Finch, 4 W. L. B., 908, 7 Dec. R., 673.
    
      Mr. K. L. Cobourn, for defendant in error.
    The courts of Ohio have not as yet decided that a guardian, whether she is a daughter or a stranger, is not entitled to be compensated for- the services rendered her ward, both in the care of her property and her person. Section 6288, Revised Statutes; Section 10953, General Code; 2 Rockel’s Probate Practice, Sec. 1490.
    The statute above cited clearly makes it the duty of the probate court to allow or fix the amount of the compensation, and in no other manner does the statute authorize a guardian to receive compensation except by the allowance of the probate court only. 2 Rockel Probate Practice, Secs. 1485, 1487-1490, 1518; Section 6304, Revised Statutes; Section 10991, General Code.
    In the case of Gorman v. Taylor, 43 Ohio St., 86, this court held that the probate court has exclusive jurisdiction in the settlement of such accounts, following the case of Newton v. Hammond, 38 Ohio St, 430.
   By the Court.

Sarah E. Ingram was appointed guardian of the person and estate of her mother, Rachel A. Scattergood, who had been adjudged an imbecile in July, 1904. She continued in the discharge of the duties of such guardian until the death of the ward in October, 1907. Thereafter she filed in the probate court her account as such guardian, and asked for the allowance of certain items which she deemed reasonable on account of services to the ward and in the care of her property and expenses in the care of her ward and her estate. The ward had lived with her daughter as a member of her household, and some of the items charged in the account were for services and for board. Exceptions to the account having been filed by the plaintiff in error they were in part overruled, and in part sustained and the ■rulings were affirmed by the circuit court. The exceptor prosecutes error here with respect to the overruling of certain of his exceptions, for the reason that it was admitted upon the original hearing that the guardian had no express contract with her mother for such care and services and that no claim on account thereof had been presented to the personal representatives of the mother after her death.

In support of his exceptions counsel for the plaintiff in error urges as though it were applicable here, the doctrine held in many cases, including Hinkle et al., Exrs., v. Sage, 67 Ohio St., 256, that there can be no recovery on account of services rendered to a deceased person by one who sustained to him the relation of a member of his family, except upon proof of an actual contract. But very obviously the doctrine invoked can apply only to a claim against one who is sui juris, for it would be absurd to require a contract with one incapable of making it. It would be equally absurd to require a presentation of the claim to the administrators of the ward, since, being her personal representatives, they are concerned only with claims against her. It is for such reasons as these that as to both expenditures incurred by a guardian and compensation to be paid to him the subject is by Section 10953, General Code, left to the determination of the court settling the account. That section is complete authority for the judgment under review.

Judgment affirmed.

Davis, C. J., Spear, Shauck, Johnson and Donahue, JJ., concur.  