In re Bolin's Estate

Decision Date21 December 1908
Citation98 P. 934,22 Okla. 851,1908 OK 255
PartiesIn re BOLIN'S ESTATE et al. v. BOLIN et al. TOLBERT
CourtOklahoma Supreme Court

Syllabus by the Court.

A general guardian of the estate of a minor is entitled to the exclusive possession, together with the care and management of the estate of such minor committed to his trust, which cannot be limited by order of court as to its custody, and where, on annual settlement, the court found the amount due said minor and ordered the same paid by said guardian to the clerk of the court, that part of said order to make such payment is void.

[Ed Note.-For other cases, see Guardian and Ward, Dec. Dig. § 35 [*]]

Error to the United States Court for the Southern District of the Indian Territory; J. T. Dickerson, Judge.

In the matter of the estate of Morgan Bolin and others. From an order disallowing certain claims of S. R. Tolbert, guardian he brings error. Modified and cause remanded.

On October 30, 1905, S. R. Tolbert, as guardian of Morgan Bolin, James E. Bolin, and Joseph Bolin, minors, plaintiff in error, filed in the United States Court for the Indian Territory, Southern District, sitting in probate at Ada, his annual settlement. On March 20, 1906, said guardian filed a supplemental settlement necessitated, "by inadvertence and oversight in failing to show in said report the amount of money he had received for said estates in the years 1904 and 1905, as per inventory filed showing the amount collected for each of said minors." On March 22, 1906, the clerk in probate filed his report passing on these settlements recommending the disallowance of the credit claimed by the guardian in his separate account with Morgan Bolin of the item of $75 as paid George Colbert for 100 acres of land for said minor to file on, $125 claimed by him as fee for filing thereon, $75 claimed by him in "a general way for looking after the minor's estate," for want of law justifying such charges; that he be allowed for expenditures as itemized in said settlement, and stated that this guardian reports amount collected for this ward to be $318.33; that the item of $80 claimed as a credit in his separate account with James E. Bolin as paid Chili Nelson for land to file said minor on and the item of $125 claimed by said guardian as a fee for filing on said land, and the item of $75 charged by him in a "general way" be disallowed, and that his expenses as itemized be paid, and stated that said guardian reports the amount collected for this ward to be $278.33; that the item of $65 claimed as a credit by said guardian in his separate account with Joseph Bolin as amount paid to Felix Bemis for homestead right on 160 acres for his said ward to file on, and the item of $75 claimed by said guardian as a fee for filing on said land, and the fee of $25 charged by said guardian in "a general way" be disallowed, but that all items charged as expenses be allowed, and stated that said guardian reports amount collected for this ward to be $255.33, that he has collected in all for these minors $851.99, and that he should be allowed as compensation $85 to be charged pro rata to said minors.

On June 22, 1906, said guardian filed in court another supplemental settlement, wherein he expostulates elaborately against the report of the "clerk of probate" in thus disallowing him in all $770, and prayed the court to hear proof in support of said items, none of which were backed by voucher or otherwise. On June 9, 1906, said guardian filed another annual settlement, in which he says he "will now submit the amount of money received and expended by him during the current year past," which he undertakes to do, and which shows a balance due Joseph Bolin on this settlement of $117.20 and James E. Bolin of $115.43, and prays to be allowed "generally for his services," from the estate of Morgan Bolin $40, from the estate of James E. Bolin $30, and from the estate of Joseph Bolin $20. On October 9, 1906, the "clerk in probate" filed his report on all of said settlements, and of the $375.67 for which said guardian asked credit against the estate of Morgan Bolin he recommended $275 thereof be disallowed, and, after giving him credit for certain expenditures and compensation found him to be due said minor $258.73. Of the $399.94 for which said guardian asked credit against the estate of James E. Bolin, he recommended $280 be disallowed, and, after giving him credit for certain expenditures and compensation, found him to be due said minor $229.91. Of the $209.94 claimed by said guardian as a credit against the estate of Joseph Bolin, he recommended $165 be disallowed, and, after giving him credit for certain expenditures and compensation, found him to be due said minor $277.49, and recommended that said guardian be required to pay the same to the court by a day certain, and that he present to said court his resignation as guardian.

The cause coming on to be heard, the court made the following order:

"And now on this 16th day of October, A. D. 1906, came on to be considered the first and second annual settlements and the various supplementals of the guardian herein, and it appearing from said reports that the said guardian has received the sum of $491.83 belonging to the estate of Morgan Bolin, and has disbursed the amount of $233.40 on account of expenses of said estate, which disbursement and expenses are hereby allowed, and it appearing that said guardian has received the sum of $452.16 belonging to the estate of James E. Bolin, and that he has expended the sum of $122.25 on account of said estate, which expenditures are hereby allowed, and it further appearing that said guardian has received the sum of $405.66, belonging to the estate of Joseph Bolin, and that he has expended the sum of $128.17 on account of said estate, which sum of $131.17 is hereby allowed, and the court, being well and sufficiently advised in the premises, doth order that said guardian be charged upon this settlement, and he is hereby directed to pay to the clerk of this court within 15 days from this date the following sums to wit:
To the credit of Morgan Bolin .. $258 43
" " " " James E. Bolin .......... 229 91
" " " " Joseph Bolin ............ 277 49
-------
$765 83

From which said order said guardian prosecuted his appeal to the Court of Appeals for the Indian Territory, and the same is now before us for review as successor to that court.

Clinton A. Galbraith and Thomas D. McKeown, for plaintiff in error.

J. F. McKeel, for defendants in error.

TURNER J.

The first error assigned is that the court was without jurisdiction to enter that part of the order requiring plaintiff in error to pay $765.83 to the clerk of the court, and for that reason the same is void. In this we concur. We are of the opinion that that part of the order infringed upon the rights of the guardian to an extent beyond the powers of the court to make, and to that extent is void. The jurisdiction of the courts of probate is not inherent. 9 Enc. Pl. & Pr. 953. Such courts are purely creatures or statute, with certain limited statutory powers which must be strictly construed. Whenever they exceed the bounds of their statutory power, their acts to that extent are void.

In Myrick v. Jacks, 33 Ark. 425, the court, speaking of the powers of these courts, said: "When they proceed to do a thing which, by proper proceedings and upon a proper case made, they are authorized to do, it will be presumed they have acted correctly; or if the proceedings have been irregular or the conditions of jurisdiction not strictly fulfilled, it is error to be corrected on appeal or certiorari. But if they undertake to make an order not authorized under any circumstances, although they may have jurisdiction over the same property for other purposes, it is void." Mansf. Dig. § 3485 (Ind. T. Ann. St. 1899, § 2381) provided: "The guardian of the person, whether natural or legal, shall be entitled to the charge, custody and control of the person of his ward, and the care of his education, support and maintenance. The curator shall have the care and management of the estate of the minor, subject to the superintending control of the court; and the guardian of the person and estate of the minor shall have all the powers...

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