McLeod v. Griffis

• Decision Date: 23 June 1888
• Parties: McLEOD <I>et al.</I> <I>v.</I> GRIFFIS.
• Court: Arkansas Supreme Court

8 S.W. 837

McLEOD et al.

v. GRIFFIS.

Supreme Court of Arkansas.

June 23, 1888.

Appeal from circuit court, Lee county; M. T. SANDERS, Judge.

This is a proceeding in chancery by R. T. Griffis, guardian to Kate and Mannie McLeod, heirs at law, to surcharge and falsify the settlement accounts of the appellant, G. W. McLeod, against him and the sureties on his bond, as administrator of the estate of Bernard McLeod, deceased. The case was formerly before this court on appeal; and the decree of the circuit court was reversed, upon a hearing, upon the original pleadings and proofs, and other proceedings had thereon,—referring the case to a master to take an account; and, upon his report and statement of the accounts, the case was remanded to the circuit court, with instructions to again refer it to a master to state an account upon the principles announced in our opinion, using for that purpose the pleadings, exhibits, and proofs in the record, charging the administrator with such losses to the estate as the proofs should show to be the result of intentional or legal fraud, or as occurred through accident or mistake, and crediting him with such mistakes or errors as are shown to be in his favor, and charging him with legal interest on any balance from the date of his final settlement with the probate court. 45 Ark. 505. On the case being remanded, the circuit court again referred it to a special master, Greenfield Quarles, with instructions as follows: "(1) Charge the defendant with all such losses sustained by the estate as are shown by the proofs to have been the result of intentional or legal fraud, or as occurred through accident or mistake of the administrator. (2) Charge the defendant with any loss sustained by the estate by reason of the purchase by the administrator of the stock of merchandise belonging to the estate. (3) Credit the defendant with the errors and mistakes shown to be in favor of the administrator. (4) Charge defendant with 6 per cent. per annum interest on any balance against him from the date of his final settlement in the probate court. (5) If the master finds that the said administrator has been guilty of any fraud in concealing assets of the estate, and failed to account for them, deduct all commissions allowed him for his services as such administrator, and charge them to him in the account." The master has divided his report into six paragraphs. In the first he states "that, owing to interlineations, erasures, etc., in the exhibits, he found it necessary to make an examination of the books of account kept by B. McLeod, in his life-time, and by G. W. McLeod, as the administrator of the estate;" stating the accounts covering the whole administration on the theory adopted by the former master. He then states an account accordingly, covering the whole proceedings of the administration, making the sum of the debits $52,155.88, and the sum of the credits $46,239.18; leaving in the hands of the administrator at date of his last settlement, January 7, 1879, the sum of $5,916.66, to which adding legal interest to October 25, 1886, makes $8,681.68. (2) In the second paragraph he states the account differently, leaving out of the credits the administrator's commissions, on the theory that he had forfeited commissions on account of his frauds, and makes the amount due, including interest, October 25, 1886, $10,663.86. (3) In the third paragraph he states no account, but alleges there was some evidence that the administrator bought timber out of which lumber was manufactured for the estate, but, as the value or amounts were not given, no credit could be allowed. (4) In the fourth paragraph, after stating that "charging the defendant with the amounts which came into his hands and which he failed to account for, and with such losses to the estate as the proofs show to be the result of negligence, accident, or mistake, and crediting him with such mistakes or errors as are shown to be in favor of the administrator, he proceeds to state an account accordingly." As the fourth and fifth paragraphs were affirmed by the court below, we will here state the items of this account:

                  To amount of notes not accounted for,     -       -      -  $1,551 06
                  To lumber, etc., not accounted for, -       -     -          4,795 38
                  To error in Bush note,   -      -       -         -      -     333 74
                  To shingles,       -       -    -     -       -       -         50 00
                  To error as to voucher 58, first settlement account, -   -     210 00
                  To interest on notes,        -       -        -       -        265 69
                  To error in claim paid Jarrot and Rodgers,       -       -      50 00
                  To check given,   -        -        -         -       -        100 00
                  To error in Allison draft,      -        -       -       -     407 31
                  To overcharge in building gin,      -         -       -        196 00
                  To error in amount paid Allison, Smith & Johnson,  -     -      72 00
                                                                              _________
                      Total amount of debits,       -        -     -       -  $8,031 18
                Contra
                     By remnant corn, timber, etc., -        -     -       -  $  496 86
                     By amount paid Hewitt, $414.77, less $100, -       -        314 77
                     By amount to E. L. Black,      -       -      -       -     100 78
                     By repairs and miscellaneous expenses,        -       -     647 79
                     By J. A. Bush, -        -              -      -       -     580 00
                     By James Torlin,   -                   -      -              35 00
                     By additional mill expenses,-          -      -       -      21 00
                                                                              _________
                     Total credits,        -      -         -    -         -  $2,196 20
                                                                              =========
                     To amount January 7, 1879,       -        -           -  $5,834 98
                     To interest for 7 yrs. 9 mo. 16 days,  -      -           2,727 87
                                                                              _________
                         Amount due October 25, 1886,       -  -   -       -  $8,562 85
                

(5) The master in the fifth paragraph states: "From the proofs before the master, he finds it impossible to state from what source some of the items with which the administrator charges himself in the first settlement come but by charging him with the open book-accounts, which came to his hands, the merchandise bought and paid for with the moneys of the estate, the probable profits made in the mercantile business while carried on by the administrator for the benefit of the estate, the amounts would be about the same. The master has therefore balanced those items, and made no charge, nor allowed any credits for these items. (6) In the sixth paragraph the master finds that "the manner in which the administrator conducted the estate, his failure to keep proper books of account, and to charge himself with the assets with which he is legally chargeable, deprives him of any right to commissions;" and thereupon he deducts the commissions allowed in his accounts, $1,666.25, with interest, $778.82, making $2,446.06, from his accounts as allowed him by the probate court, and, adding it to the aforesaid balance of $8,562.85, charges the administrator as due the estate the sum of $11,007.91. To this report the defendants except as follows: First. To the first paragraph, because the master therein disregards the settlement accounts of the administrator by the probate court, and restates the accounts covering the whole of the administration on the theory of the former master, J. M. Parrott, in contravention of the former decision of this court. Second. To the second paragraph for the same causes contained in his exception to the first paragraph, and because, by the finding of the master, the administrator is deprived of commissions allowed by the probate court, unjustified by anything in the pleadings or proofs or the former decision of the supreme court. Third. To the fourth paragraph he excepts to the items $1,551.06, amount of notes not accounted for, and $4,794.38 for lumber not accounted for, amounting to $6,346.44, for the following reasons: (1) These charges are not itemized; (2) there is nothing to show that they are not embraced in the administrator's accounts, as confirmed in the probate court; (3) there is nothing to show that they were collected or collectible; (4) there is nothing to show that, if omitted from the probated settlements, it was through any fraud, accident, or mistake of the administrator. Fourth Exception. To the sixth paragraph, on the same grounds set out in his exception to the second paragraph above. Fifth Exception. And the defendants except to the whole report because it is stated in the alternative. Sixth Exception. Because it ignores the judgment of the probate court in confirming the administrator's several settlement accounts, and the directions of the supreme court, and without finding or specifying that the administrator was guilty of any fraud, actual or legal, or that said judgments resulted from accident or mistake; and because the report states the account on the theory that the administrator is chargeable with...