
    CASH 26. — ACTION BY ROBERT GOODIN, GUARDIAN OP MYRTLE GOODIN TO SELL HER INTEREST IN CERTAIN LANDS FOR HER ' MAINTENANCE. MILBURN CAMPBELL PURCHASED .AT THE. SALE AND HIS OBJECTIONS TO. • THE TITLE BEING OVERRULED AND THE SALE CONFIRMED HE APPEALS. —
    February 28.
    Campbell v. Goodin’s Guardian
    Appeal from -Bell Circuit Court.
    M. J: Moss, Circuit Judge.
    From the judgment defendánt appeals —
    Reversed.
    1.’ Guardian and Ward — Sales Under Order.-of Court — Petition—In an. action by a guardian to sell bis ward’s interest in lands for ’the maintenance' and édúcation of the ward, as provided by Civ. Code Prac. section 489, subsec. S, where it ■was alleged in tbe petition and shown in the judgment that the ward inherited* the land from her mother and uncle, it was unnecessary that the title papers should have been filed, since, as the estate was cast upon her by the laws of descent, she had no muniments of title to be filed.
    2. Same — Care of Ward’s Estate — Sale of Real Property. — Under Civ. Code Prac. section 489, subsec. 3, which provides that á court of equity may allow a guardian to sell his ward’s real estate for the maintenance and education of the ward, a guardian, who is also the father of the infant ward, will not be permitted to sell her real estate, which constitutes her whole inheritance, unless it be clearly shown that he is unable to support and educate her, and his inability so to do must be alleged in the petition.
    CALVIN HURST for .appellant.
    C. W. METCALF for appellee.
   Opinion of the Court by

Judge Barker

Reversing.

Robert Goodin, as guardian of Myrtle Goodin, instituted this action in the Bell circuit court against Ms ward for the purpose of selling her undivided one-half interest in a tract of mountain lands situated in Bell county, Ky., and containing some 500 acres, for the purpose of properly educating and maintaining her with the proceeds. The land is fully described by metes and bounds in the petition, and the allegation is made that it is necessary for tbe maintenance and education of the ward that the property should be sold; she being without any other means of support. The proceeding is under subsection 3 of section 489 of the Civil Code of Practice, but we think the allegations of the petition are insufficient to authorize the sale. They show that Myrtle Goodin is a girl 16 years of age;- that she is a cripple, and has no other means of her own support than the property in question; that she has a good mind and is susceptible of taking an education; but it is not alleged that her father, who is also her statutory guardian, is not able to maintain and educate his child. After process was served upon the infant defendant, a guardian ad litem was appointed for her, who, after examining into the matter, reported to the court that he was unable to make an affirmative defense to the proposed sale, and expressed • the ■ opinion that it would be beneficial for the infant defendant if her land should be sold as prayed in the petition. ' Interrogatories were filed, addressing questions to several witnesses, whose testimony showed that the infant had no other estate than the land ,and that a larger income would accrue to her from the investment of the price of the-land than- from the land itself. Before the sale was had a proper bond, as required by section 493 of the Civil Code of Practice, was executed by the guardian and approved by the court. At the sale by the master commissioner the property brought $2,800, which seems to be about its value according to the testimony, and within $200 of the highest appraisement made by any of the- .witnesses who deposed on the question of its value. The purchaser at the commissioner’s sale filed various exceptions to it, among which were (!) the failure to file with the- petition the deeds or other title papers which constitute the muniments of title of the infant to the land sold;- and (2) that the guardian of the infant was also her father, that it was his duty to support, maintain, and educate his infant child,- and that the court should not have sold the whole estate of the infant to educate and maintain her, it not having been made to appear that the father was unable to do this for his child. All of the exceptions were overruled, and the sale confirmed over the objections of the purchaser, and the merits of this ruling of the court is the question before us for adjudication.

It is alleged in the petition, and shown in the judgment that the infant defendant inherited the land sold from her mother and her uncle. As the estate was cast upon her by the laws of descent, she had no muniments of title to be filed. Smith, etc., v. Leavill, Guardian, 29 S. W. 319, 16 Ky. Law Rep. 609.

The second exception above mentioned seems to us fatal to the sale. It is undoubtedly the duty of the father to support and maintain his infant daughter, and he cannot shift the responsibility to her estate, and thus consume her whole inheritance. The land in question is worth from $2,800 to $3,000, and constitutes the whole estate of the infant defendant. She is about 16 years of age, and a cripple. Without any attempt to disclose a reason for not supporting his child as the law requires him to do, the father asks the court to sell his daughter’s whole estate and turn the proceeds over to him for the purpose of discharging a duty which primarily rests upon his own shoulders. In the case of Dixon v. Hosick, 101 Ky. 231, 19 Ky. Law Rep. 387, 41 S. W. 282, it is said: “It is the duty of a father, whether he is a guardian or not, to educate and support his children out of his own resources, and persons other than a father (stepfather) standing in loco parentis to the child may acquire a father’s liability for its. support and education.” It seems to us clear that, before the father should be permitted to convert his infant child’s estate into money for the purpose of her support and education, it ought to abundantly appear that he is not able, for some good and sufficient reason, to discharge the duty which the law imposes upon him. This has not been done in this case, and we do not feel willing to uphold the sale in question.

.For these reasons, the judgment is reversed, with directions to set aside the sale, and for further procedure consistent with this opinion.  