Hemphill v. Smith

• Decision Date: 17 April 1922
• Docket Number: 22225
• Citation: 128 Miss. 586,91 So. 337
• Court: Mississippi Supreme Court
• Parties: HEMPHILL v. SMITH

91 So. 337

128 Miss. 586

HEMPHILL v. SMITH

No. 22225

Supreme Court of Mississippi

April 17, 1922

APPEAL from chancery court of Sunflower county, HON. E. N. THOMAS Chancellor.

Petition by George W. Smith for removal of W. T. Hemphill as guardian of the person and estate of Sollie Overby. Petition granted and Hemphill appeals. Affirmed.

Affirmed.

Hilton & Hilton, Frank E. Everett and W. D. Wormack, for appellant.

There is but one question in this case. What is "sufficient cause," and was that cause sustained by the proof? Section 1968, Hemingway's Code, provides: "The court by which a guardian was appointed, may, for sufficient cause after having him cited to appear, etc."

This is the only statutory method of removing a guardian. I do not mean to argue that the chancery court would not have the inherent power to remove a guardian for misconduct in the administration of his ward's estate, but before the court can remove him, there must be such mismanagement of the estate or misconduct toward the ward to constitute "sufficient cause" for removal.

Counsel for Geo. W. Smith, in their brief, abandon the first ground assigned in their petition for appellant's removal, that is, that he was convicted of a felony, and confine themselves entirely to the ground of "cruel and inhuman treatment" of the ward. The authorities cited in our initial brief literally drive them from the position that his so-called convictions would be cause for removal.

Now let's see about the charge of cruel and inhuman treatment of the ward. The evidence of George Smith himself shows that he would not let Hemphill have anything to do with his ward after December, 1920; he would not let him take him to town to have clothes made for him and it is undisputed that all his clothes had to be made because his body was so unproportioned that you could not buy them ready made.

Mr Rudy an officer of the law (see pages 31-35 of the record), shows that he went with Hemphill to see Smith and he, Smith, refused to let Hemphill see his ward or to have anything whatever to do with him. To the same effect, is the evidence of Hemphill, none of which is disputed by Smith in any way. Then after Smith had given appellee the permission of having his ward clothed or seeing him, but constantly demanding his thirty dollars per month board for him, having no one about the place to cook for or look after this imbecile, who was not able to provide for the ward. Certainly that was not satisfactory to the guardian, neither was it to the best interest of the ward. It was then that the guardian accompanied by his family physician, Dr. Norman, took the ward from the custody of Smith. This constitutes the evidence showing "sufficient cause" for his removal. Solly in his evidence says Hemphill treated him alright while he was with him.

Therefore, when boiled down, the "cruel and inhuman treatment" of the ward consists, first, in taking him away from the custody of Geo. W. Smith, who was getting thirty dollars per month board for him; second, in taking him out of a place where he had no one to care for him, his clothes, his person, to cook a meal, except Geo. Smith; third, in taking him into his own care and keeping where he could provide him with the comforts and necessities of life, without paying out of Solly's little estate thirty dollars per month board; fourth, in carrying out the provisions of the will of his mother and the solemn decree of the court, but counsel says it was "cruel and inhuman treatment" to take him away from his home and his friends. Mrs. Smith, Solly's mother, knew that home and those friends, when she wrote her will in 1916 four years before her death. She knew that home and those friends during the four years that elapsed from the writing of the will up to her death, and she did not see fit to change it. She knew her boy and his condition. She knew W. T. Hemphill, whom she denominated guardian of her unfortunate boy; she knew Geo. W. Smith, her husband, and did not want him to have the care and custody of her unfortunate child, for doubtless, she had visions then of the charge for board at the rate of one dollar per day by this stepfather, who counsel pictures as so good, kind and loving, and the early dissipation by him of the little estate she left for the support of this helpless one.

Take the record of this matter in this court, and they show Hemphill has been hounded, harrassed and pursued by Geo. W. Smith trying to oust him as guardian, since the probation of the will. The discretion of a chancellor cannot be arbitrarily used. I know he has broad powers, but he has no right or authority to remove a guardian, unless "sufficient cause" be first shown, and in this case no cause was shown at all for his removal, and we submit the decree should be reversed.

Neil & Clark, for appellee.

Citing only statutes which we conceive apply to and govern in this case, we will now proceed, as nearly as we are able to and in as brief manner as possible, to the heart of this case. Section 2403 of the Mississippi Code of 1906, Hemingway's Code, section 1964, in so far as it applies to this case, provides that: "The chancery court of the county of the residence of a minor who has an estate, real or personal, shall appoint a guardian for him . . ."

Section 2432 of the Mississippi Code of 1906, Hemingway's Code, section 1993, provides that: "If someone will not qualify as guardian of a person of unsound mind, the guardianship may be devolved upon the clerk of the chancery court of the county subject to all the provision of law for his being guardian of minors."

The duties and powers of guardians other than of minors, in so far as the ward's estate is concerned, are given and clearly defined by sections 2437 and 2438, of the Mississippi Code of 1906, Hemingway's Code, sections 1998 and 1999.

As we interpret the law set out in these statutes, humanity demands and the law requires that a guardian, especially a guardian of a ward of...