Beakley v. Ford

• Decision Date: 14 February 1916
• Docket Number: 175
• Citation: 185 S.W. 796,123 Ark. 383
• Parties: BEAKLEY v. FORD
• Court: Arkansas Supreme Court

185 S.W. 796

123 Ark. 383

BEAKLEY v. FORD

No. 175

Supreme Court of Arkansas

February 14, 1916

Appeal from Lawrence Circuit Court, Eastern District; Dene H Coleman, Judge; affirmed.

STATEMENT BY THE COURT.

The probate court of Lawrence County, on the 3d day of its April term, 1912, directed the appellant, Beakley, who was curator of the estate of the minor heirs of Eugene Pickett, deceased to purchase certain real estate at a certain price with the funds of the estate, and to take credit in his settlement for the amount paid out under the order. In compliance with this order the appellant purchased the lands, paid the purchase price, $ 1,850, and took a deed in the name of the minors. They, with their mother, lived on the place for a year or so. The appellant paid the incidental expenses connected with the ownership of the property and in his final settlement with the probate court at the July, 1914, term asked credit for the funds so expended, which were as follows:

Purchase price

$ 1,850.00

Recording deed

1.50

Taxes for 1911

20.46

Taxes for 1912

3.49

Taxes for 1913

15.03

Insurance on house

28.00

Interest 6 per cent to be deducted from

interest charged

158.87

Total

$ 2,077.35

Exceptions were made to this settlement by the appellee and the probate court denied the appellant any credit on his account for the above expenditures, entered a judgment and directed him to pay the amount in cash to the appellee as curator in succession. Appellant seeks by this appeal to reverse this judgment.

Judgment affirmed.

Gustave Jones, Ponder & Ponder and John W. Newman, for appellant.

1. The order of the court was a judicial act, and after the term expired the court was powerless to revoke, nullify or ignore its provisions. The probate court, under Const. 1874 Kirby's Dig., § 3801, has exclusive jurisdiction of the estates of minors, with power to order an investment of the funds in real estate. 98 Ark. 63; 21 Cyc. 91; 12 Ark. 94; 35 Id. 205; 70 Ark. 88; 102 Id. 114; 84 Id. 32. There is no evidence of waste, fraud or imposition.

S. A. D. Eaton, for appellee.

1. The probate courts have only such powers and jurisdiction as have been specifically granted them by the Constitution and statutes of this State. 33 Ark. 429, 494; 47 Id. 462; 95 Id. 166; Ib. 262. There is no law empowering or authorizing probate courts to permit a guardian to invest his ward's money in real estate. 33 Ark. 429, 494; Kirby's Digest, §§ 3801, 3804, 3806; 98 Ark. 63. The order was null and void and may be impeached collaterally. 32 Ga. 266; 23 Cyc. 1099; 21 Id. 91; 27 Ark. 197.

2. The burden was on appellant to show that the credits asked are correct and just. 76 Ark. 217. He has failed.

WOOD, J. MCCULLOCH, C. J., Dissenting.

OPINION

WOOD, J., (after stating the facts).

The appellant contends that the order of the probate court at its April term, 1912, directing the curator to purchase certain lands with the funds in his hands belonging to the minors and to take credit therefor in his settlement at the expiration of the term became a final order and after this order had been carried out by the curator of the estate, the probate court, at a subsequent term, "was powerless to revoke, nullify or ignore its provisions," and that inasmuch as this order directed the appellant to take credit for the sums expended thereunder that the probate court, at a subsequent term, erred in refusing to allow him credit for such expenditures on his final settlement, and that the judgment of the circuit court to the same effect, from which this appeal comes, was also erroneous.

The appellant contends that the order of the probate court at its April term, 1913, was within its jurisdiction under the Constitution of 1874 and section 3801 of Kirby's Digest, citing Watson v. Henderson, 98 Ark. 63, 135 S.W. 461. Section 3801 of Kirby's Digest provides: "When it shall appear that it would be for the benefit of a ward that his real estate, or any part thereof, be sold or leased and the proceeds put on interest, or invested in productive stocks, or in other real estate, his guardian or curator may sell or lease the same accordingly upon obtaining an order for such sale or lease from the court of probate of the county in which such real estate, or the greater portion thereof, shall be situate."

The Constitution gives to probate courts "exclusive original jurisdiction in matters relative to * * * the estates of deceased persons, * * * guardians and persons of unsound mind and their estates as is now vested in the circuit court, or may be hereafter prescribed by law." Const. of Ark., article 7, section 34.

In Watson v. Henderson, supra, the question at issue was whether or not the chancery court had jurisdiction to order the sale of a minor's land for reinvestment. In discussing that question it was shown that the Constitution of 1874 vested exclusive jurisdiction in the probate court to order a sale of a minor's land for reinvestment. The question now under consideration was not before the court at all and it was not there decided that the probate court had jurisdiction to order the funds of an estate in the hands of a guardian or curator to be invested in real estate.

This court, in numerous cases, has held that probate courts have "only such special and limited jurisdiction as is conferred upon them by the Constitution and statutes, and can only exercise the powers expressly granted and such as are necessarily incident thereto." Lewis v. Rutherford, 71 Ark. 218, 72 S.W. 373.

There is no authority giving the probate court jurisdiction to order the guardian or curator to invest the funds of the estate of minors in his hands in real estate. Section 3801 of Kirby's Digest, invoked by the appellant, does not confer any such authority. It authorizes the sale of real estate for reinvestment "when it shall appear that it would be for the benefit of the minor to do so." And there are statutes authorizing guardians and curators to loan the money of minors under the conditions prescribed in those statutes. Kirby's Digest, sections 3804 to 3806 inclusive.

We have held that the probate court has no power, under its general jurisdiction, to order the lands of a minor to be exchanged for other lands, there being no statute conferring such power. Meyer v. Rousseau, 47 Ark. 460, 2 S.W. 112; McKinney v. McCullar, 95 Ark. 164, 128 S.W. 1043; Gatlin v. Lafon, 95 Ark. 256, 129 S.W. 284.

The order of the probate court under review contains no recitals that would bring it within the exercise of the jurisdiction conferred upon it by the statute. The probate court having no such common law jurisdiction, and proceeding solely by virtue of statutory authority, its jurisdiction to exercise such authority must appear from the record and will not be presumed. Gibney v. Crawford, 51 Ark. 34, 9 S.W. 309; Hindman v. O'Connor, 54 Ark. 627, 16 S.W. 1052; Morris v. Dooley, 59 Ark. 483; St. Louis, I. M. & S. Ry. Co. v. Dudgeon, 64 Ark. 108, 40 S.W. 786. See also Willis v. Bell, 86 Ark. 473, 111 S.W. 808.

It follows that the judgment of the circuit court is correct, and it is therefore affirmed.

DISSENT BY: MCCULLOCH

MCCULLOCH C. J., (Dissenting).

I am unable to reconcile the views expressed by the majority in the opinion in this case with the former decisions of this court with respect to the jurisdiction of the probate court over the estate of infants and deceased persons, and the presumption attending the judgments of those courts in the exercise of that jurisdiction. It has always been declared by this court, in the earliest decisions as well as recent ones that the probate court is a court of superior jurisdiction, and that the sale by an administrator or guardian under orders of the probate court "is a proceeding in rem by a superior court having jurisdiction of the subject matter * * * and consequently all reasonable presumptions must be indulged in favor of the regularity of the proceedings." Borden v. State, 11 Ark. 519; Marr ex parte, 12 Ark. 87; ...