Moore v. Allen

• Decision Date: 13 December 1915
• Docket Number: 45
• Citation: 181 S.W. 908,121 Ark. 335
• Parties: MOORE v. ALLEN
• Court: Arkansas Supreme Court

181 S.W. 908

121 Ark. 335

MOORE v. ALLEN

No. 45

Supreme Court of Arkansas

December 13, 1915

Appeal from Craighead Chancery Court; Charles D. Frierson Chancellor; reversed.

STATEMENT BY THE COURT.

This suit was instituted by the appellee in the chancery court against the appellant Moore and the other appellants as sureties on his bond as guardian of appellee to surcharge and falsify the settlements made by the guardian with the probate court.

The complaint, after alleging that the appellee was one of four children of T. C. Murray, deceased, all of which children were minors at the date of the death, of said Murray, alleged that her father died seized of certain lands, which she described; that the appellant, C. S. Moore, was first appointed administrator of her father's estate, and upon final settlement as such administrator he was by the probate court appointed guardian and curator of herself and the other children; that as such guardian he filed his annual settlements for the years 1907, 1908, 1909, 1911, 1912 and 1913; that in his first annual settlement as guardian he credited to the estate of Murray the amount received from himself as administrator, towit: $ 508.67; that the settlement made with the appellee and the others was a joint settlement, and each of the subsequent settlements were likewise joint settlements, and that Moore as guardian had never filed separate settlements with the plaintiff (appellee here) at any time, showing what amount he was due the appellee separately for her interest in cash on hand or rents and profits, or her income from the estate from any source whatever. She alleged that the lands described in her complaint constituted the homestead of her father at the time of his death; that they were of the rental value of $ 5 per acre, and that Moore, as guardian, had lived upon the lands during all the time since her father's death, cultivating the same, and had accounted for nominal rental only to the probate court of Craighead County; that the amount of rents thus accounted for by him was unreasonably low, unjust and inequitable, and that he had failed and refused to account to the plaintiff for any sum or to reveal in his settlements with the probate court whether he was due the plaintiff (appellee) individually any sum whatever; that his first annual settlement showed that he had received the sum of $ 508.67, which should have been distributed equally among the four children of Murray, and she should have received her individual share of the proceeds upon her becoming of age on the 10th day of September, 1910, but that since said date the guardian had refused to account to her, or to the probate court for her, in any sum; that this first annual settlement was fraudulent because it did not show the amount of money due each of his wards received by the guardian from the sale of personal property or otherwise, and by reason of his failure to compute interest annually upon the sum due each of his wards and to charge himself therewith annually until the date of his final settlement, and that each settlement subsequent to the first was fraudulent for the same reason that by reason of the defective, illegal and fraudulent settlements, Moore, her guardian, was due her several hundred dollars. She prayed that a master be appointed, and that he be directed to reopen all the accounts and settlements made with the probate court, and that said settlements be corrected and adjusted, and that she have judgment against the appellant and his bondsmen for such sums as might be found due.

Appellants answered jointly and severally, admitting the allegations as to the death of Murray, the number of his heirs, the relationship of guardian and ward as set up in the complaint and also as to the ownership of the lands described, and that Moore had had possession of the same as guardian under the orders of the probate court. The answer admitted that Moore had filed the several annual settlements, but denied that he had failed to account to the estate and the heirs in each of these settlements for the full amount due. He denied that he fraudulently failed to make full and correct settlements in each and every settlement; alleged that he had accounted for all rents and profits due the estate, and for all amounts due from every source. He denied that the amount of rents was only for a nominal sum. He set up that the full amount due to the appellee had been shown by the final settlement in the probate court, and that she had been tendered said amount and refused to accept the same. He set up that the suit for distribution should be denied plaintiff (appellee) for the reason that the amount in controversy was the proceeds of the homestead; that the appellant (Moore) was the guardian for the two minor brothers of the appellee, who were still minors, and that the proceeds from the homestead were not subject to distribution until the youngest child had attained majority. He further alleged that the suit should not be maintained for the reason that there was an adequate remedy at law. He attached to his answer a copy of the judgment of the probate court approving the final settlement of the guardian with the appellee, and prayed that the complaint be dismissed.

The cause was heard upon the complaint, the demurrer thereto, the answer and the depositions of witnesses, and upon the report of the master who had been appointed by the court to state an account between the parties. The court, after revising each of the settlements with the probate court, beginning with the first, which was filed April 22, 1907, and all the settlements subsequent thereto, including the eighth settlement, filed April 29, 1914, found that the guardian was due the appellee the sum of $ 294.20, and rendered judgment against the guardian (Moore) and the sureties on his bond in that sum, from which judgment the appellants duly prosecute this appeal.

Judgment reversed.

Appellant pro se.

1. The demurrer should have been sustained. The complaint did not allege facts constituting fraud on the part of the guardian sufficient to bring the case within the jurisdiction of the chancery court. 77 Ark. 351, and cases cited. The acts constituting fraud must be specifically alleged and proved. 51 Ark. 1; 45 Ark. 505; 42 Ark. 186; 34 Ark. 63; 33 Ark. 727.

2. There was an adequate remedy at law by way of an appeal. 92 Ark. 41; 106 Ark. 552; 77 Ark. 351; 112 Ark. 71. There being an adequate remedy at law the chancery court has no jurisdiction. 106 Ark. 552, loc. cit. 559.

3. There was no proof of fraud on the...