Neville v. Kelso's Guardianship

• Decision Date: 03 May 1971
• Docket Number: No. 46222,46222
• Parties: Billy NEVILLE v. GUARDIANSHIP of William H. KELSO, N.C.M., et al.
• Court: Mississippi Supreme Court

Page 828

247 So.2d 828

63 A.L.R.3d 769

Billy NEVILLE v. GUARDIANSHIP of William H. KELSO, N.C.M., et al.

No. 46222.

Supreme Court of Mississippi.

May 3, 1971.

Rehearing Denied May 31, 1971.

O. B. Triplett, Jr., Forest, Minniece, Hamilton, Neville & Hamill, Meridian, for appellant.

Dan Coit, Meridian, A. B. Amis, Jr., Newton, for appellees.

ETHRIDGE, Chief Justice:

This appeal from a decree of the Chancery Court of Newton County involves the powers and duties of a guardian of an adult non compos mentis. Billy Neville, appellant, was the former guardian of William H. Kelso, n.c.m. In June 1968 this Court upheld the decree of that court removing Neville as guardian. Neville v. Kelso, 211 So.2d 825 (Miss.1968). The opinion observed that the ward had animosity toward Neville as guardian, and whether that feeling was justified or imaginary, it was a fact which tended to emotionally upset the ward, so the decree removing the guardian was affirmed, since the trial court had not abused its discretion. The opinion stated:

The record reflects that the guardian has served ably and well under trying circumstances. The annual accounts having been duly ratified and approved by the court are prima facie correct in behalf of the guardian. * * * We make no finding in this regard as the presumption of correctness will be maintained until displaced by proof on final account. * * *

The decree of the lower court is hereby affirmed and the cause remanded for final account in accord with its former decree, but on such account the guardian and his attorneys are entitled to an appropriate fee for their services, but not to include attorneys' fees on this appeal. (211 So.2d at 826).

On remand appellees, Kelso and his successor guardian, D. M. Anderson, filed a petition to surcharge and falsify ten annual accounts of Neville as predecessor guardian, for the years 1958-1968. The chancery court surcharged a number of vouchers and awarded the successor guardian a judgment against Neville and his bondsmen in the amount of $23,881.04. The proceeds of these vouchers went directly to the benefit of the ward. The decree was rendered on the basis that these payments either had not been previously authorized by the court, or that the amounts authorized to be paid had been exceeded.

I.

A substantial portion of the facts were stipulated by the parties. One general fact applicable to all of the vouchers involved on this appeal is that every voucher sought to be surcharged by the Chancery Court of Newton County had been itemized in an annual account by Neville, the original vouchers had been filed with these accounts, and every one of the annual accounts had been allowed and approved by the Chancery Court of Newton County prior to the filing of the petition by the successor guardian to surcharge.

William H. Kelso, at the time of the trial, was 63 years of age. He was declared to be mentally incompetent by a jury verdict in Tennessee in 1934. He has been a resident of Mississippi since August 1936, and since January 1937 has been under guardianship as an adult mental incompetent in the chancery courts of this state. From May 9, 1949, to January 15, 1958, he was under guardianship in Cause No. 7382 in the Chancery Court of Wayne County, with Billy Neville as guardian. The Wayne County guardianship was terminated by final decree on January 15, 1958, the ward having moved to Newton County. The guardianship proceeding in Newton County was then begun on petition of Neville as guardian, who served in that capacity in Newton County from January 15, 1958, until his discharge by a decree of April 4, 1967. That decree was the one affirmed by this Court in 1968. On April 13, 1968, Billy Neville as guardian filed his final account in the Chancery Court of Newton County. The ward Kelso, through his successor guardian, entered exceptions in the form of a petition to surcharge and falsify the ten annual and final accounts. There was a lengthy hearing, a large record, and the final decree of the chancery court surcharging Neville and rendering judgment against him for $23,881.04.

During the accounting period of 1958-68, Neville as guardian filed numerous petitions for authority to make various expenditures, and obtained during this period about sixty-six orders from the court. Prior to the transfer from Wayne to Newton County, Neville also served as chancellor for Wayne County. Chancellor Roy P. Noble of the adjoining chancery district served as special chancellor in authorizing various expenditures by Neville as guardian for the ward and in approving his annual accounts. When the guardianship was transferred in 1958 to the Chancery Court of Newton County (the adjacent chancery district), Chancellor Noble of that county continued to supervise administration of the guardianship and to approve annual accounts until his successor, Chancellor L. B. Porter, began his service as chancellor in 1963. Thereafter annual accounts counts were approved by Chancellor Porter until the guardian's discharge in 1967. The ward's estate had a value of $163,563.31, when Neville qualified as guardian in Newton County; when he was discharged, it had a value of $193,722.24. As will be later discussed, with certain adjustments, the aggregate expenditures of Neville as guardian for the ward, both expressly authorized and not authorized but approved on annual accounts, were within the income of the ward's estate.

Interpreting the statutes, the chancery court held that the guardian of an adult incompetent may not incur liability for and bind the estate of his ward unless and until a decree has been entered specifically authorizing the incurring of such liability, except in case of emergency or for an administrative expense. It held that the expenditure of any funds of the estate of an adult incompetent, without having first procured a decree authorizing it, except in an emergency, is not authorized under the law, and that the court had no power to subsequently ratify it.

The precise question is whether an expenditure of income by a guardian of a non compos mentis may be ratified and confirmed by the court after it is made, if it is a reasonable and proper expense in supporting, maintaining or educating the ward. Specifically, the chancellor held that an expenditure of income for the ward must be based on a prior order authorizing it, otherwise it cannot be allowed on an accounting except for emergencies; and that therefore the court has no power to ratify and confirm the income expenditure, even if reasonable, proper or necessary for support and maintenance.

Several preliminary issues can be disposed of at this point.

The chancery court erroneously held that payments of allowances directly to the ward and expenditures for his support and maintenance should be calculated on a monthly basis. The proper period for such calculation is annually. The entire statutory scheme of accounting for management of the estates of both minor and adult wards is on the basis of an annual accounting. Miss.Code 1942 Ann. §§ 425, 439; Frelick v. Turner, 26 Miss. 393 (1853); Brown v. Mullins, 24 Miss. 204 (1852). Although the decrees in question expressed the allowances on weekly or monthly periods, they must be considered on the basis of an annual accounting, and not as strictly limiting payments to a particular week or a particular month, as the trial court did.

Appellant's guardian received in 1965 and 1966 several thousand dollars from insurance companies in settlement of claims for the ward arising out of automobile accidents. The guardian also paid considerable sums during those two years for medical and hospital expenses of the ward resulting from these accidents. These recoveries reduced the net amount which had to be paid from the ward's estate for his benefit, and appellant is entitled to have these recoveries applied as offsets to those expenses for those two years.

The chancellor surcharged $1,748.86 against Neville, which was money spent in connection with transfer of the guardianship in January 1958 from the Chancery Court of Wayne County to that of Newton County. The special chancellor for the Chancery Court of Wayne County executed a decree which directed the guardian to file a copy of his final and supplemental account in the Wayne County guardianship in the Chancery Court of Newton County, together with a copy of the decree; and authorized him to pay court costs and certain fees. It directed that Neville should account to the Newton County Court for all assets received and disbursements made by him after January 10, 1958. This was done. Disallowing the payments authorized by this decree, the chancellor held that the claims had not been probated and allowed as claims against the estate. However, the decree of the special chancellor for Wayne County was sufficient authority for the guardian to pay these expenses incurred in transfer of the estate. They did not have to be probated and allowed as claims against it. Miss.Code 1942 Ann. § 441 (1956).

II.

Mississippi Code 1942 Annotated section 412 (1956), applicable to minor wards, expressly recognizes the rule established and followed in this state since its earliest days, that a guardian, without express advance authority from the court, may not encroach upon a ward's capital, but that the court might allow the guardian credit for his expenditures within the income which were reasonably made for the ward, having due regard for his condition and future prospects, just as it would have made the allowance in advance. The last three lines of section 412 state, '* * * (B)ut no guardian shall make any expenditure in excess of his ward's income for the ward's support and education without a previous order of the court or chancellor authorizing the same.'

Code section 413, first enacted in 1880, deals with the maintenance and education of a minor ward if he has a father and mother. The purpose of this statute is to require parents to...