Campbell v. Clark

• Decision Date: 13 February 1897
• Citation: 39 S.W. 262,63 Ark. 450
• Parties: CAMPBELL v. CLARK
• Court: Arkansas Supreme Court

39 S.W. 262

63 Ark. 450

CAMPBELL v. CLARK

Supreme Court of Arkansas

February 13, 1897

Appeal from Woodruff Circuit Court in Chancery, GRANT GREEN, JR. Judge.

STATEMENT BY THE COURT.

Suit in equity to surcharge and correct final settlement made by a guardian, which settlement had been confirmed by the probate court.

James H. Campbell, guardian of Lucy Clark, a minor, filed in October, 1888, his final settlement of such guardianship. In said settlement he charged himself with the amount on hand November 1, 1884, date of the last preceding settlement, to wit: $ 498.90, with interest on said sum at rate of six per cent. from that date. He asked and obtained a credit of $ 150 dollars for each of the years 1885, 1886, 1887 and 1888, as an allowance for board and clothes furnished by him to his ward, making a total credit of $ 600. The credits thus allowed were more than sufficient to absorb the whole estate of the ward, and left a balance due the guardian of $ 26.35.

It was alleged by Lucy Clark in her complaint that this annual credit of $ 150 was greatly in excess of the income of her estate, and that the same had never been paid out or expended by her guardian for her benefit, and that these facts were fraudulently concealed from the probate court by said guardian. The circuit court found that these allegations were sustained by the evidence, and ordered that the settlement of said guardian be surcharged and restated accordingly. From this judgment the guardian appealed.

Decree affirmed.

N. W Norton for appellant.

The order of allowance is conclusive where no abuse is shown. Sand. & H. Dig., secs. 219, 3604; 30 Ark. 520; ib. 312. The allowance of $ 150 and the rate of interest were matters ruled on by the probate court, and hence not reviewable in chancery. 42 Ark. 191; 51 id. 1; 43 id. 171; 8 id. 268; 20id 527; 34 id. 64; 36 id. 383. The confirmed settlements of the probate court cannot be disturbed in chancery, except for fraud or other recognized ground of chancery jurisdiction. 40 Ark. 219. There was no fraud here.

J. N Cypert for appellee.

A failure to charge interest is a fraud, as is the charging an allowance of $ 150 per annum when no such sum was expended. No more than the income of the ward can be expended in maintenance. Sand. & H. Dig., sec. 3604.

OPINION

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

The contention in this case is that the guardian fraudulently obtained a credit of $ 150 for each of the four years covered by his final settlement.

The circuit court found, not only that these credits exceeded the income of the ward's estate, but also that the guardian had never expended the sums for which he obtained credit on his final settlement. The evidence does not in our opinion show that the guardian induced the probate court to approve the settlement complained of by a statement that such court had previously authorized him to expend for the maintenance of his ward sums in excess of the income from her estate. The question we must consider therefore is whether the evidence supports the finding of the chancellor that the guardian obtained credits in his final settlement for sums not expended by him for the benefit of the ward, for, if he did, this would be such a fraud as would justify a court of chancery in restating and correcting such settlement. Dyer v. Jacoway, 42 Ark. 186; Jones v. Graham, 36 Ark. 383; Reinhardt v. Gartrell, 33 Ark. 727.

The appellee, Lucy Clark, during the years that her guardian was allowed these credits for her board and clothing, was living with Mrs. Hopkins, a sister of the guardian. Neither Mrs. Hopkins nor appellant testifies that she made any charge for board of appellee, or that anything was paid by appellant for such board. It is true, they both testify that Mrs. Hopkins procured her supplies from the store of W. P. Campbell & Bro., of which firm appellant was a member; but they do not testify that these supplies were furnished as a consideration for the board of appellee. On the contrary, the statement of Mrs. Hopkins that she "never made out any bill or charge for board," and her further statement that she "always felt that she was doing a great deal for the child," would lead to the inference that she never expected pay for such board. The appellee testified that, while living with Mrs. Hopkins, she worked the same as a servant, attending to household duties generally, and that the value of her services during this time was sufficient to pay for her board and clothing. Counsel for appellant contends that the services she rendered were only such household duties as prudent parents require their daughters to learn and do, and that, as her home was with a family supported from the guardian's store, it was the same as if she had lived with the guardian. But the supplies were furnished Mrs. Hopkins, not by the guardian, but by a firm of which he was a member, and it is not shown that they were furnished as a consideration for the board of the ward, or that Mrs. Hopkins did not pay for these supplies in some other way. If, however, we should adopt the view of counsel that the ward during these years must be considered as a member of the guardian's family, he would be in no better situation; for the rule is, when the ward lives with the guardian as a member of his family, receiving support on the one hand and on the other rendering the ordinary household services required by parents of their children, that such services will be presumed, in the absence of a clear showing to the contrary, to be a sufficient compensation for the board of the ward. In such a case, the relation is said to be quasi parental, and the guardian cannot charge the estate of the ward for board, nor the ward recover for services rendered. Otis v. Hall, 117 N.Y. 131, 22 N.E. 563; Doan v. Dow, 8 Ind.App. 324, 35 N.E. 709; Marquess v. La Baw, 82 Ind. 550; Folger v. Heidel, 60 Mo. 284; Horton's Appeal, 94 Pa. 62; Tiffany's Domestic Relations, 313.

This final settlement of appellant covers a period from the eleventh to the fifteenth year of the ward's age. It is not unreasonable to believe that a girl of that age might earn her own board. Her estate consisted of only a few hundred dollars in money, and it was the duty of her guardian to have endeavored to find her a home where she could earn her board, thus avoiding the necessity of invading the principal of her small estate. If he failed in this, he should have submitted the matter to the probate court, and allowed it to determine whether it was...