Goldmann, Freund and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d.
Plaintiff appeals from two Law Division orders, the first denying her motion for entry of default against defendant individually, and the second dismissing her complaint and entering judgment in favor of defendant as guardian of Annie May Stengel, an incompetent, now deceased. The parties are respectively the granddaughter and son of the incompetent.
By her action plaintiff sought recovery of $15,564.71, representing monies she claims she spent for the care and comfort of her grandmother from September 30, 1953 to the date of her death, January 22, 1956, together with interest and costs. The complaint was in two counts, the first seeking recovery from defendant as guardian of his mother, and the second from him individually. It recites that in June 1953 the parties had assumed custody of Annie May Stengel in Florida because she was incompetent and no longer able to care for herself. They were appointed co-guardians of her person by a Florida court on July 31, 1953. The complaint alleges defendant thereafter requested
plaintiff to take over the sole custody of the incompetent and that by agreement executed September 30, 1953 defendant, "individually and as guardian," agreed that in consideration of plaintiff's providing for the care, comfort, maintenance and interest of the incompetent, "he would assist her in recovering all of the funds expended by her," together with interest thereon, from the C. E. Henry Stengel trust fund, of which the incompetent was the beneficiary. Plaintiff alleges that pursuant to the agreement she took over the custody of the incompetent and provided her with food, clothing, lodgings, 24-hour nursing care, comfort and medical attention until the date of her death.
The complaint goes on to recite that defendant subsequently applied in ancillary proceedings in New Jersey to be appointed guardian of the person and property of the incompetent, with the result that he was appointed such guardian on March 11, 1955; that neither plaintiff nor the incompetent received notice of the application, nor did plaintiff know thereof prior to January 22, 1956, the day the incompetent died. Plaintiff alleges that defendant, as ancillary guardian, received $23,827.07 from the trustees of the Stengel trust fund; that he expended no part thereof for the support or maintenance of the incompetent; and that although plaintiff had demanded reimbursement in accordance with the September 30, 1953 agreement, defendant has refused to pay the $15,564.71 she spent in caring for the incompetent.
The summons and complaint were served upon defendant "individually and as guardian," by leaving a copy in the office of the Superior Court Clerk. Defendant at once served his answer "as guardian" and by way of separate defenses alleged: (1) he had been appointed guardian of the person and property of the incompetent by our Chancery Division and had duly qualified, but at no time had plaintiff ever requested or sought that he as guardian transfer or contribute money for the support, care and comfort of the incompetent; (2) plaintiff had, without his consent as
guardian, unlawfully undertaken the care and custody of the incompetent, he had never been consulted with respect thereto or authorized any of the alleged expenditures, and plaintiff's undertaking was completely voluntary and gratuitous; (3) the claim was excessive; (4) under N.J.S. 3 A:6-36 and 3 A:20-3 defendant, as guardian, had no authority to expend money in behalf of the incompetent without the prior approval by the Superior Court or a County Court of New Jersey and, finally, (5) plaintiff was never appointed by any New Jersey court having jurisdiction to determine the mental and physical incompetency of Annie May Stengel, and therefore any expenditures on behalf of the incompetent by reason of plaintiff's appointment in the foreign jurisdiction were not effectual and binding in this State.
Shortly after the answer had been filed plaintiff applied to the Law Division for an order directing the Superior Court Clerk to enter default against defendant individually. Supporting the motion was plaintiff's affidavit reciting the power of attorney signed by defendant on May 11, 1955, appointing the Superior Court Clerk as the person who might be served with all process affecting the estate of the incompetent, whereof he was guardian (see N.J.S. 3 A:12-14); that the summons and complaint had been served upon the Clerk (see N.J.S. 3 A:12-15); and that although the Clerk had accepted service for defendant as guardian, he refused to accept service in defendant's individual capacity. Plaintiff's motion was denied.
Thereafter defendant, as guardian, moved for an order dismissing the action because the complaint failed to state a claim against him as guardian or, in the alternative, for summary judgment in his favor as guardian on the ground that there existed no genuine issue as to any material fact and he was entitled to a judgment as a matter of law. The affidavit supporting the motion stated that the alleged agreement of September 30, 1953 had not been signed by defendant; that prior to his New Jersey appointment he had
never been appointed nor had he qualified as guardian of the property of the incompetent, in Florida, New Jersey or any other jurisdiction; and that subsequent to his appointment in this State he never saw his late mother nor, as guardian of her property, ever made any agreement, express or implied, wherein he agreed to pay plaintiff for any advances or expenditures of monies for the support and maintenance of the incompetent. Plaintiff filed a counter-affidavit, again referring to the September 30, 1953 agreement and her ...