Hines v. Thompson
| Decision Date | 25 May 1940 |
| Citation | 148 S.W.2d 376 |
| Parties | HINES, Veterans' Administrator, v. THOMPSON. |
| Court | Tennessee Supreme Court |
Judge Joseph Higgins, of Nashville, and Lawson H. Myers, of Fayetteville, for Mrs. Thompson.
This case is before us on a petition for a writ of error filed by Frank T. Hines, Administrator of the World War Veterans' Bureau, seeking a review of a decree of the county court of Lincoln County entered December 16, 1938, nunc pro tunc as of March 2, 1932, approving a loan of $1,100 of the funds of a non compos veteran of the World War on the security of a first mortgage on a house and lot in the town of Fayetteville.
The question arose on an exception of the Veterans' Administrator to the final account and settlement of Mrs. Ermir Thompson, executrix of the will of J. Henry Thompson, deceased, as guardian of Curtiss Smith, the non compos veteran, in which she claimed credit for the said $1,100 and the interest accrued thereon, notwithstanding the fact that the mortgage executed as security for said loan had been foreclosed and the property sold for $485, resulting a loss of some $800 to the ward's estate.
The contention of the Veterans' Administrator is that the requirements of section 8496 of the code regulating the lending of surplus funds of the ward were not complied with by the guardian because there was no record of any application to the court for the approval of the loan, or any appraisal of the property, or any order of court authorizing the guardian to make the loan. Judge A. E. Simms was the county judge having charge of the guardianship at the time the loan was made and also at the time of the trial. The matter was first brought to his attention by the Veterans' Administrator in February, 1936, which was about two years after the loan was in default in the payment of both principal and interest. The administrator at that time wrote Judge Simms asking him to require Thompson, the guardian, and his corporate surety, to restore the amount of the loan to the ward's estate because there had been no approval of the loan by the court. In reply to this letter Judge Simms wrote the administrator that he had in company with Hubert Holman, an attorney of the Fayetteville bar, W. O. Loving, a licensed real estate dealer, and H. E. Dryden, president of the Elk National Bank, inspected the property before the loan was made, and placed a valuation of $2,200 on it, and that he had authorized the guardian to make the loan, and he suggested that he enter a nunc pro tunc order at that time as of date March 2, 1932, authorizing the guardian to make the loan, and he asked the administrator to consent to the entry of such a nunc pro tunc order. In this letter Judge Simms sent to the administrator a certificate signed by H. T. Holman and W. O. Loving in which they stated that they had at the request of J. Henry Thompson, the guardian of Curtiss Smith, the non compos veteran, inspected said property and appraised it at $2,200, and had so reported to him. This certificate is not dated or sworn to, but the record discloses that it was signed about February, 1936. Mr. Dryden had died in the meantime.
Mr. Hines, the Veterans' Administrator, declined to consent to the entry of such a nunc pro tunc order and insisted upon the guardian and his surety being required to restore the fund to the ward's estate.
Thereafter J. Henry Thompson died, and his widow, Mrs. Ermir Thompson, qualified as executrix of his will; and in her final account and settlement of said guardianship, she claimed credit for the amount of said loan and the accumulated interest thereon, and the Veterans' Administrator filed exceptions to this item of her settlement on the grounds above set out.
Judge Simms, conceiving that he was incompetent to pass upon said exceptions, recused himself and Hon. B. E. Holman of the Fayetteville bar was elected special judge of said court to hear the proof and pass upon said exceptions. Judge Simms was the only witness and testified that he had gone with the appraisers to inspect the property and had authorized the guardian to make the loan. There was no written application for authority to make the loan, no order or memorandum appointing appraisers and no report of the appraisers; there was no certificate as to the title to the property, and no order of court or memorandum of any kind showing that the court had authorized the making of the loan. The special judge entered the nunc pro tunc order and overruled the exceptions to the guardian's settlement, and the assignments of error filed along with the petition for the writ of error challenge the correctness of his ruling. Without setting out the assignments of error separately we will proceed to the discussion of the questions raised thereby.
The effort of Mrs. Thompson, the executrix of the guardian J. Henry Thompson, deceased, is clearly to show that he complied with the requirements of section 8496 of the code regulating the loaning of the surplus funds of a ward's estate on real estate security. The statute provides that the guardian .
The county court is a court of record and we think it is clearly implied from the language of the statute that there should be a formal application by the guardian to the court for the authority to make the loan, the appointment of the three disinterested appraisers, their written report, and an order of the court authorizing the making of the loan. There is no pretense that this was done in the instant case. While Judge Simms does testify that he did authorize the guardian to make the loan, and that he went with the appraisers to inspect the property, it was done orally and no court record or memorandum of any kind was made of the transaction. It does not appear that any action was taken in open court. It does not even appear that he appointed the appraisers or that the appraisers made their report in writing, or that they made their report to the court. The belated certificate of the two surviving appraisers, made four years after the...
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