Nelson v. Cowling

• Citation: 91 S.W. 773
• Parties: NELSON v. COWLING.
• Decision Date: 06 January 1906
• Court: Supreme Court of Arkansas

Page 773

91 S.W. 773

NELSON v. COWLING.

Supreme Court of Arkansas.

January 6, 1906.

Appeal from Howard Chancery Court; Jas. D. Shaver, Chancellor.

Suit by S. C. Cowling, as guardian of Bettie M. Jones, against J. J. Nelson. From the decree rendered, defendant appeals, and complainant prosecutes a cross-appeal. Reversed.

This suit is by appellee, and cross-appellant, present guardian, against appellant, former guardian, of Bettie M. Jones, an insane person, to surcharge and falsify the settlements of appellant with his ward, which had been approved by the probate court. The issue is narrowed here by briefs of counsel to the question of whether or not the settlements should be set aside in the matter of rents received by appellant from lands of his ward. The complaint concerning this charged: "That during the administration of the said defendant, she [his ward] owned and was possessed of a large portion of very valuable real estate of the rental value of one hundred and fifty dollars per year; that said defendant did collect, or by the exercise of ordinary prudence and loyalty to his ward could have collected one hundred and fifty dollars per annum for fourteen years, amounting in the aggregate to twenty-one hundred dollars, whereas, whereas, the said defendant in his said pretended settlements only accounts for eight hundred and sixty-four dollars, leaving a balance due his ward of twelve hundred and thirty-six dollars, if defendant had been loyal to her interest." The above was a portion of paragraph 3 of the complaint. The appellant "denied each and every allegation in paragraph three of plaintiff's complaint," etc. He further denied generally "that he failed and neglected to charge himself with all amounts received by him for his ward." Upon the issue thus formed depositions were taken and the cause heard. The settlements of appellant, as approved by the probate court, show that he received as rents, after making allowances for improvements, the following.

                From E. K. Walden for 1888......... $124 00
                From W. H. Lindsay, subtenant of
                  Joe Cowling, 1889................  150 00
                From Joe Cowling, Jr. 1890.........  115 00
                From Joe Cowling, Sr. 1891.........   75 00
                Rented to Ike Read for 1895........   50 00
                Rented to Ike Read for 1896........   70 00
                Rented to Ike Read for 1897........   60 00
                Rented to Ike Read for 1898........   70 00
                Rented to Ike Read (Hipp, subtenant)
                  1899.............................   70 00
                Rented to Sam Hooker for 1900......   80 00
                Rented to D. B. Smith for 1901.....  231 80
                From Alex May (part of year 1902)...   32 75
                

In the probate settlements appellant was not charged with the rents of 1892, 1893, and 1894.

The settlements of appellant were set aside as fraudulent, and the chancellor restated them as follows:

                To rent for year 1888.............. $135 00
                 "   "   "   "   1889..............  150 00
                 "   "   "   "   1890..............  150 00
                 "   "   "   "   1891..............  100 00
                 "   "   "   "   1892..............  100 00
                 "   "   "   "   1893..............  100 00
                 "   "   "   "   1894..............  100 00
                 "   "   "   "   1895..............  150 00
                 "   "   "   "   1896..............  150 00
                 "   "   "   "   1897..............  100 00
                 "   "   "   "   1898..............  100 00
                 "   "   "   "   1899..............  100 00
                 "   "   "   "   1900..............  100 00
                 "   "   "   "   1901..............  231 80
                 "   "   "   "   1902..............   26 50
                

The chancellor, in restating the account of the appellant with his ward, found a balance due the estate of $780.52. The court allowed appellant $180 for clearing land, and $100 as compensation for his services, leaving a balance due the estate of $500.52 and decreed accordingly. Other facts stated in opinion.

D. B. Sain, for appellant. Feazel & Bishop, for appellee.

WOOD, J. (after stating the facts).

Appellant challenges the jurisdiction. In McLeod et al. v. Griffis, Guardian, 45 Ark. 505, it is said: "An omission to account for moneys or other assets actually received by the administrator has been held by this court to be a legal fraud, which the chancery court will correct whether the omission was intended or by mistake." In Campbell v. Clark, 63 Ark. 450, 39 S. W. 262, we held (quoting syllabus): "That for a guardian to obtain credits in his final settlement with the probate court for sums not expended by him for the benefit of the ward is such a fraud as will justify a court of equity in restating and correcting the settlement."

The appellant did not demur to the complaint, nor move to make more specific. He answered, and treated the complaint as charging him with a failure to account in his settlements for money which he, as guardian, had received as rent for the land of his ward. He took proof on this issue. Appellee and cross-appellant evidently intended that his complaint should charge appellant with a failure to account for rent money which he had received as guardian. While the allegations are inartistic and indefinite, they are sufficient, according to the principles of the above and other cases, to state a cause of action within the jurisdiction of a court of chancery. The facts showing that appellant failed to account for rent during the years he collected same are stated with enough precision to constitute a cause of action. From these allegations fraud follows as a legal conclusion. Had appellant desired a more definite statement as to the years and the amounts, for each year, a motion to make more specific was his remedy. C. O. & G. Ry. v. Doughty, Adm'r., etc. (Ark.) 91 S. W. 768, and authorities cited. But the complaint is good only in so far as it may be considered as charging appellant with a failure to pay over the money which he had actually collected. That part of the complaint which seeks to charge appellant with rents which "he could have collected by ordinary prudence and loyalty to his ward" states no facts which constitute a fraud. Conway v. Ellison, 14 Ark. 360; ...