Nelson v. Cowling
| Decision Date | 06 January 1906 |
| Citation | 91 S.W. 773,77 Ark. 351 |
| Parties | NELSON v. COWLING |
| Court | Arkansas Supreme Court |
Appeal from Howard Chancery Court; JAMES D. SHAVER, Chancellor reversed.
STATEMENT BY THE COURT.
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 $ 150 per year; that said defendant did collect, or by the exercise of ordinary prudence and loyalty to his ward could have collected, $ 150 per annum for fourteen years amounting in the aggregate to $ 2,100, whereas the said defendant in his said pretended settlements only accounts for $ 864, leaving the balance due his ward of $ 1,236, if defendant had been loyal to her interest." The above was a portion of paragraph three 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 settlement of appellant, as approved by the probate court, show that he received as rents, after making allowances for improvements, the following:
1889
150.00
115.00
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
Renter 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, 3, and 4.
The settlements of appellant were set aside as fraudulent, and the chancellor restated them as follows:
To rent for year 1888
$ 135.00
To rent for year 1889
150.00
To rent for year 1890
150.00
To rent for year 1891
100.00
To rent for year 1892
100.00
To rent for year 1893
100.00
To rent for year 1894
100.00
To rent for year 1895
150.00
To rent for year 1896
150.00
To rent for year 1897
100.00
To rent for year 1898
100.00
To rent for year 1899
100.00
To rent for year 1900
100.00
To rent for year 1901
231.80
To rent for year 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.
Decree reversed.
D. B Sain, for appellant.
The probate court has exclusive jurisdiction of guardians of insane persons and the settlement of their accounts. Art. 7 § 34, Const.; Kirby's Digest, § 4002; Ib. 901; 43 Ark. 171; 36 Ark. 389; 42 Ark. 222. Mere negligence of the guardian does not constitute fraud, nor confer jurisdiction on the chancery court. 51 Ark. 10. The guardian is chargeable, not with the rental value of the land, but with the rents collected. 64 Ark. 477. A guardian's accounts having been submitted to and approved by the probate court, the court will not go behind these settlements except upon clear and satisfactory evidence of fraud or mistake. 72 Ark. 234; 23 Ark. 47; 25 Ark. 108; 40 Ark. 219. A bill in equity will not lie to correct errors of the probate court, in the absence of a showing that the probate court has been imposed upon by fraud or concealment. The remedy is by appeal. 71 Ark. 482; 61 Ark. 9; 45 Ark. 505; Crawford's Dig. 68, 69.
Feazel & Bishop, for appellee.
Fraud was shown and proved. Chancery has jurisdiction to surcharge and restate the guardian's settlements. 63 Ark. 452; 42 Ark. 186; 36 Ark. 383.
OPINIONWOOD, J. (after stating the facts).
Appellant challenges the jurisdiction. In McLeod v. Griffis, 45 Ark. 505, it is said: "An omission to account for moneys or other assets actually received by the administrator has been by this court held to be a legal fraud which the chancery court will correct, whether the omission was intended or by mistake."
In Campbell v. Clarke, 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 one expended by him for the benefit of the ward is such a fraud as well justify 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. Choctaw, O. & G. R. Co. v. Doughty, ante p. 1, and the 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; Ringgold v. Stone, 20 Ark. 526; Reinhardt v. Gartrell, 33 Ark. 727; Mock v. Pleasants, 34 Ark. 63.
Under art. 7, § 34, Const., and § 4002, Kirby's Digest, probate courts have exclusive original jurisdiction of the estates of insane persons and of the settlements of the accounts of the guardians of such persons. When these Trimble v. James, 40 Ark. 393; McLeod v. Griffis, 45 Ark. 505, and authorities cited; also McLeod v. Griffis, 51 Ark. 1, 8 S.W. 837.
Where fraud is the ground for impeaching such settlements, actual or constructive fraud will suffice. But the acts constituting it must be specifically alleged and proved. McLeod v. Griffis, 51 Ark. 1, 8 S.W. 837; Id. 45 Ark. 505; Dyer v. Jacoway, 42 Ark. 186; Mock v. Pleasants, 34 Ark. supra; Reinhardt v. Gartrell, 33 Ark. supra.
The fact that appellant may not have exercised that care in renting the lands of his ward that "ordinary prudence and loyalty to her interest" required would afford no ground for a court of chancery to set aside and restate settlements which had been duly confirmed by the probate court. Authorities, supra. Yet a careful scrutiny of the testimony touching only the matter of rents in each settlement discovers at most only a negligent failure to rent the land for certain years, and in other years a negligent failure to rent the land for as much as it was worth. For instance, the failure to rent the land for the years 1892 and 3 and the renting of same for the improvements put on it in 1894. And the renting of the land in other years for a less sum than appellant could, with ordinary prudence, have got for it--these were matters for, and were considered by, the probate court. An exhibit in the record shows that exceptions were filed to the tenth settlement of the guardian, in which all the matters here complained of were specifically called to the attention of that court. If the court ruled erroneously in confirming the settlements in the particulars named, they were such errors as should have been corrected on appeal. Authorities, supra.
The burden of proof was upon appellee and cross-appellant to make good the charges of fraud, and we are of the opinion that there is no direct proof to show it, and no facts and circumstances shown from which the law would raise the presumption of fraud. The conduct of appellant, as shown by the proof, even though it may have been negligent, was nevertheless consistent with honest purpose.
Taking up the items separately, the testimony of Walden shows that he paid in cash for rent of the land for year 1888 $ 135, and...
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