In re Guardianship of Horne, 32694

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: Griffith, J.
• Citation: 178 Miss. 714,173 So. 660
• Parties: In re GUARDIANSHIP OF HORNE
• Decision Date: 12 April 1937
• Docket Number: 32694

173 So. 660

178 Miss. 714

In re GUARDIANSHIP OF HORNE

No. 32694

Supreme Court of Mississippi

April 12, 1937

Division B

Suggestion Of Error Overruled May 10, 1937.

APPEAL from the chancery court of Newton county HON. A. B. AMIS, SR., Chancellor.

In the matter of the guardianship of Orvella Horne. From a decree sustaining exceptions to the final account filed by S. McCary, guardian, the guardian appeals. Affirmed in part and in part reversed and remanded with directions.

Affirmed in part, and in part reversed, and remanded.

[178 Miss. 715] Flowers, Brown & Hester, F. W. Bradshaw and Robert Burns, Jr., of Jackson, and J. M. Carr, of Newton, for appellant.

It is the duty of the court to require and see that the guardian fully develops his case so that the findings of the court may be fair and just and not to encompass him or prevent the full development of the facts by applying the rules of evidence in the case of ah ordinary party complainant. We concede that when a final account is contested, the burden is upon the guardian to substantiate his account, but that this is the extent of his burden. The account and a proper substantiation thereof makes out a prima facie case and the duty then shifts to the contestant to disprove of show error in those items which he seeks to contest which would stand as correct if no proof were offered for either side. In other words, the burden of proof in a matter of this kind necessarily [178 Miss. 716] must shift from time to time and this was contemplated by the Legislature by section 1744 of the Mississippi Code of 1930.

Austin v. Lamar, 23 Miss. 189; Roach v. Jelks, 40 Miss. 754; Griffith s Mississippi Chancery Practice, sec. 563; In re Kostohris Estate, 29 P.2d 829.

We submit that the record of this case presents such a situation of confusion that we cannot possibly see how the chancellor ever arrived at any conclusions at all and that it was his privilege and duty, under the law, because of this state of confusion, to remand the case for further proof and to require the parties to bring before the court sufficient evidence to enable the court to arrive at a fair and proper determination.

Gillis v. Smith, 75 So. 451; Quitman Lbr, Co. v. Turner, 48 So. 819; Witherspoon v. State, ex tel. West, 103 So. 134; Donly v. Ray, 6 So. 324; Clark v. Clark, 1 So. 835; Kirby v. Gay, 101 So. 705; Beard v. Green, 51 Miss. 854; McAllister v. Richardson, 60 So. 570; Clemons v. Dennis, 181 S.E. 387.

Prior to the filing of the Tenth Annual Account, appellant presented a petition to the court for authority to take out a $ 5000 life insurance policy on the life of his ward, payable to the ward's estate and in response to his petition, the court authorized the taking out of the insurance policy and the payment of premiums thereon. No proof was offered during the trial of this cause as to this policy. The only part of the record dealing with this policy and on which the court based its opinion is contained a t page 210 of the record, It consists merely of a statement by counsel for appellant that he would like to read the decree which was entered relative to taking out of this insurance policy. Whereupon the court interrogated counsel as to the whereabouts of the policy and counsel for appellee then announced, "We have the policy. It is in court today."' This policy was in the hands of counsel for appellee, according to his own statement and he failed of refused to introduce the [178 Miss. 717] policy in evidence and it is not before this court today. It is one of the items on which he is seeking to surcharge this guardian and it was his duty to introduce the policy and to make proof thereon and although he stated in court that he had the policy, he made no attempt to produce it or offer it in evidence. We submit that the burden as to this item was on appellee.

Section 1885, Code of 1930; in re Parker, 77 S.W.2d 816.

The question of obtaining insurance for a ward in a guardianship matter is comparatively new in all the states and the decisions on this point are limited. The only case that we have been able to find that constitutes direct authority is the recent case of In re Guardianship of Burgy et al., 257 N.W. 791.

The only proof in the record is that the stock was worthless during the entire time and we submit that it was serious error for the lower court to hold appellant liable for the par value of this stock, and in addition thereto compounded dividends and interest thereon.

The law of this state with reference to the duty of guardians is clearly defined in the case of In re Adams Guardianship, 152 So. 837. It is specifically held in the Aclaras case that the only duty imposed upon a guardian is the exercise of reasonable care and diligent. There is nothing in the testimony of the appellant to indicate that he failed to exercise such care. In fact, the testimony is conclusive and clear that he did exercise reasonable care and diligent even to the extent of following the stock into the bankruptcy court and making proof of his claim therein.

Scoville v. Brock, 81 Vt. 405, 70 A. 1014 In re Fulron Trust Company of New York, Trustee, 257 N.Y. 132, 177 N.E. 397, 77 A. L. R. 499; Coffin v. Bramlett, 42 Miss. 194; In re Dempster's Estate, 162 Atl, 447.

Section 1885 of the Mississippi Code of 1930 provides that the guardian shall report to the court when he has surplus funds on hand not needed for expenditures for [178 Miss. 718] authority and direction as to the manner of investment. On September 6, 1923, appellant presented a petition to the chancery court of Newton county, showing that he had $ 1400 on hand not needed for expenditures and praying that he be authorized to deposit it in the Bank of Hickory at 4%, and on September 6, 1923, an order was entered by the court authorizing appellant to deposit $ 1400 on the Bank of Hickory at 4% interest, and yet, the lower court found that appellant had not strictly complied with section 1885 of the Cede of 1930, and that he should be charged with 6% interest. We submit that this finding is entirely erroneous. This order specifically authorized appellant to deposit the sum of $ 1460 at 4%, and under no theory of law or reason could appellant be charged with 6% on this $ 1400. On September 12, 1923, appellant reported that he would have surplus money on hand not needed for current expenses and prayed that he be authorized to lend the money at not less than 6% per annum and an order was entered by the court authorizing him so to do. The court now finds that appellant has not strictly complied with section 1885. If this is not in compliance, we do not see how the section can be complied with. In spite of this order authorizing him to lend funds at 6% per annum, he is charged in the restated final account with 6% per annum compounded.

On June 9, 1925, appellant reported to the court that he had an opportunity to sell certain lands in the state of Florida belonging to his wards, and an order was entered by the court on June 9, 1925, authorizing him to sell the land for not less than $ 8000, of which one-fifth, or $ 1600, would belong to appellee and further authorizing him to deposit the proceeds in the Newton County Bank on time deposit at 4% per annum, or to lend it on first mortgage security at 6% per annum, and yet the lower court held that appellant had not strictly complied with section 1885 of the Code. We submit under this order, appellant had authority with regard to this [178 Miss. 719] $ 1600 to either deposit it at 4% or lend it at 6%. In other words, he was given an option and a discretion as to which he would do with the money and now on an action to hold him liable for interest, he is entitled to the most favorable option granted in that order, and he can only be held for interest on this sum of money at the rate of 4% per annum.

White v. Moore, 144 So. 696; In re Guardianship of Steward, 37 A. L. R. 441, 105 Neb. 787, 181 N.W. 941; Crump v. Gerock, 40 Miss. 765; Noble's Admr. v. Moses, 1 So. 217, 81 Ala. 530; Morgan v. Mortgage Discount Co., 129 So. 589, 100 Fla. 124.

A. B. Amis, Jr., of Newton, for appellee.

Section 1744 of the Mississippi Code of 1930 provides: "Any person interested may, at any time within two years after final settlement, by bill or petition, open the account . . . and evidence shall be admissible in such cases to show the falsity of the account . . ." The section on its face shows the purpose of the rule that the burden is paced on him who files the bill or petition to open of falsify an account after final settlement. Certainly the burden would be on the complainant or petitioner. In the case at bar, however, there had been no final settlement and no bill or petition was filed to open a final settlement, but instead the final account was filed and exceptions were filed thereto. What then is the rule with reference to the burden? We say that, in effect, the guardian who offers the final account has the burden of proving the correctness of the final account. The final account in legal contemplation is nothing more nor less than an original bill. The exceptions thereto are nothing more nor less than an answer. With an original bill and an answer denying the material allegations of such bill, on file, then is the cause at issue, and, it so, upon whom is the burden? Certainly it is upon the complainant to prove by competent testimony [178 Miss. 720] the allegations of his bill so as that the relief prayed for may be granted. In the case at bar the appellant filed the final account and said that it was correct and asked that he and his bondsmen be discharged. The appellee filed exceptions to such final account and pointed out wherein such final account was incorrect. The burden then most assuredly was upon the guardian who offered the final account to prove the correctness...