Logan v. Gay

• Decision Date: 26 April 1905
• Citation: 87 S.W. 852
• Parties: LOGAN v. GAY.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 852

87 S.W. 852

LOGAN v. GAY.^*

Court of Civil Appeals of Texas.

April 26, 1905.

Appeal from District Court, Tarrant County; Irby Dunklin, Judge.

Judicial settlement of the accounts of J. M. Logan, as guardian of Bessie Gay, a minor. From the judgment rendered by the district court on appeal from the county court, the guardian appeals. Modified and affirmed.

Q. T. Moreland, for appellant. Wm. J. Berne, for appellee.

JAMES, C. J.

On July 7, 1897, appellant became guardian of the estate of the minor, Bessie Gay. On same day Mrs. Gay, the mother of the minor, presented a claim for $400 against the estate, which was allowed by the guardian for the full sum, but approved by the court for $250, and so placed on the claim docket, but nothing was entered in the minutes in reference thereto. In this condition of the claim the guardian, on August 2, 1897, paid it out of the corpus of the estate. The claim appears to have been for support of the minor. Bessie became of age on September 13, 1901. On July 2, 1902, the guardian filed his final account, embracing said item, and on September 12th it was acted upon and approved as to such payment to Mrs. Gay. On January 30, 1903, after the matter was pending in the district court on appeal, appellant obtained in the county court a nunc pro tunc order directing that an order to bear date August 2, 1897 (the date the said claim had been approved by the county judge), be entered on the minutes of the court directing the guardian to pay said claim, which the order declared should have the same force and effect as if entered of the date of the approval of the claim. The district judge refused to sanction the said item, the judgment as to it and certain other items being as follows: "The following items of expenditures by the guardian [referring to this item and others] charged in his final account are rejected and disallowed, for the reason that at the time of such expenditures the income of the estate belonging to the ward was not sufficient to overcome the same, and the guardian had not prior thereto procured an order of the probate court allowing such expenditures to be paid out of the corpus of the estate." He accordingly treated the nunc pro tunc order as of no effect. The record shows, by appellant's final account, that the estate received by him consisted solely of the sum of $2,481.94, which came into his hands on July 7, 1897. On July 12, 1897, he made a loan and received $100 interest. When he paid the $250 in question on August 2d, he had disbursed all of this interest except $9.25, this being all of the income he had when this payment was made; and this, it appears, he paid out in the course of his guardianship on items for which he has received full credit.

The ruling in the Supreme Court in the following cases, construing article 2630, Sayles' Civ. Ann. St. 1897, is that no payments by the guardian for the support of the minor out of the corpus of the estate will be sustained unless an order directing the payment be first entered upon the minutes of the court: De Cordova v. Rogers (Tex. Sup.) 75 S. W. 16; Blackwood v. Blackwood, 92 Tex. 478, ...