Parker v. Wilson

• Decision Date: 03 April 1911
• Citation: 136 S.W. 981,98 Ark. 553
• Parties: PARKER v. WILSON
• Court: Arkansas Supreme Court

136 S.W. 981

98 Ark. 553

PARKER v. WILSON

Supreme Court of Arkansas

April 3, 1911

[Copyrighted Material Omitted]

Appeal from Monroe Chancery Court; John M. Elliott, Chancellor reversed.

STATEMENT BY THE COURT.

This action was instituted by Marie A. Justice as guardian and next friend of Earle M. Wilson, a minor, in the chancery court against H. A. Parker as guardian of said Earle M Wilson and W. K. Sims, T. H. Jackson and H. A. Carter as sureties on his guardian's bond to surcharge and falsify his account as such guardian.

The defendants demurred to the complaint, and subsequently filed an answer, denying the allegations of the complaint.

The facts are as follows: Mary A. Wilson died at Brinkley in Monroe County, Arkansas, on December 17, 1891, leaving surviving her two children, Earle M. Wilson, born October 17 1888, and Ollie H. Wilson, born in October, 1891; and her husband, Sidney J. Wilson. Ollie died in November, 1892, without issue, and left surviving him, his brother Earle as his sole heir at law. Earle and his father, Sidney J. Wilson, are both living. Mary A. Wilson left a will, which is as follows:

"In the year of our Lord, 1890, on the 6th day of May, in the full possession of all my faculties, I make this my last will and testament, revoking all former wills I may have made before this date. And in the name of God I do write these lines declaring them to be my will incontestable under the law now and forevermore. Unto my beloved husband, Sidney J. Wilson, I do give and bequeath the sum of ten ($ 10.00) dollars. This to be paid out of the first money accruing from my estate. With the exception of the ten ($ 10.00) dollars given to my husband, Sidney J. Wilson, I do give and bequeath unto my beloved and only son, Earle Malcolm Wilson, all my earthly possessions. All lands, houses, house furniture, notes, bonds, mortgages and ready money that I may possess at my death or that may come to me after my death by division of estate or otherwise, I do give and bequeath unto him. I furthermore appoint my husband, Sidney J. Wilson, sole guardian of my son and his property. He is to take entire charge of both, managing the one and educating the other as he sees fit. As a mark of my esteem and affection, I require no bond and hold him free of the law. Therefore, he is to take and hold all my son's, Earle Malcolm Wilson's, property in trust to manage and direct, to bargain, sell and convey in my son's name until the latter is twenty-one (21) years of age. Then my husband, Sidney J. Wilson, is to render unto my son all I die possessed of, with legal rate of interest thereon, less expense of raising and educating. But in that settlement I hold my husband accountable to no one save my son and his Maker. In the event of my having further issue, children born to me in this marriage, my husband shall be sole guardian of them all, and that my children, let them be one or many, shall share and share alike in all I die possessed of with my son, Earle Malcolm Wilson. Should I not have further issue in this marriage and should my son, Earle Malcolm Wilson, die before he is twenty-one (21) years of age, then one-half of all I die possessed of I do give and bequeath unto my youngest brother, G. M. Deadrick, and the other half to Mrs. A. W. Parks, my husband's sister. Should my brother inherit one-half of my property before he becomes of age, I appoint my husband his guardian till he is twenty-one (21) years of age and without bond. Of my own will and accord I have written these lines, and that it is my will that such disposition be made of my property witness my hand and seal below. Should any one, friend, foe or kindred, on any grounds or technicalities whatsoever endeavor to set aside or break this my last will and testament, let them stand defeated before the law and accused before all mankind.

"Mary A. Wilson, May 6, 1890.

"Attest: Mrs. E. P. Forte, E. P. Forte."

The will was admitted to probate at the October term, 1893, of the probate court of Monroe County. On the 23d day of February, 1892, letters of guardianship upon the estate of Earle M. Wilson, a minor, were granted to H. A. Parker. He executed a bond as such guardian in the sum of $ 2,000, with W. K. Sims, T. H. Jackson, S. J. Price and H. A. Carter as his sureties.

In February, 1892, H. A. Parker was also appointed guardian of Ollie Houck Wilson and executed a bond as such guardian. These letters of guardianship were granted in Monroe County in September, 1893. H. A. Parker was granted letters of administration upon the estate of Ollie Houck Wilson, who died as above stated in November, 1892. He gave bond as such administrator in the sum of six hundred dollars. At the October term, 1892, of the Monroe Probate Court, H. A. Parker was granted letters of administration upon the estate of Mary A. Wilson, deceased, and executed a bond in the sum of $ 3,000. The defendants in this action were not sureties on any of said bonds except the bond of H. A. Parker as guardian of Earle M. Wilson. On the 15th day of October, 1906, Marie A. Justice was appointed guardian of Earle M. Wilson by the probate court of Greene County, Arkansas. The said Earle M. Wilson was at that time 18 years old, and resided in Greene County.

The complaint in this action was filed on July 22, 1908. Earle M. Wilson became of lawful age while the suit was pending, and was substituted as plaintiff in the action.

The decree in the case was rendered on October 5, 1910.

When Mary A. Wilson died, there was a balance due her on the purchase price of a house and lot in Brinkley, Ark., which she had conveyed to Lora N. Campbell. This balance amounted to $ 1,280.20, and was paid to H. A. Parker as her administrator in May, 1893. She had no other estate except her personal effects, and a few household goods, of little or no value. Her life was insured for $ 2,000, and her children were named as beneficiaries in the policy. On March 9, 1892, H. A. Parker, as guardian of said minors, collected the full amount of said insurance policy.

On May 13, 1892, H. A. Parker loaned to J. B. Hughes the sum of $ 850 out of the amount received on said insurance policy. He took Hughes's notes therefor, payable on or before January 1, 1893, to himself as guardian of Earle and Ollie Wilson with interest at the rate of 10 per cent. per annum from date until paid. Hughes was a farmer in Monroe County, and gave certain rent notes and other notes as collateral. Subsequently Hughes became insolvent, and it is conceded that Parker never collected any part of said note except $ 280, nor realized anything on the collaterals. At the July term, 1893, of the Monroe Probate Court, Parker filed a settlement of his guardianship of Earle and Ollie Wilson. He charged himself with the amount of the insurance received, viz., $ 2,000, and credited himself with amounts which left the estate of the minors indebted to him in the sum of 67 cents. Among his credits appears the following:

"Your guardian loaned to J. B. Hughes $ 850, which was more than he should have loaned under the circumstances, which

was loaned on the 13th day of May, 1892

$ 850.00

Interest to May 13, 1893

85.00

"Total principal

$ 935.00

May 13, 1893, by amount paid by Hughes.

280.00

"Balance due from Hughes

$ 655.00"

His account was approved and confirmed at the October term, 1893, of said court.

H. A. Parker was the principal witness in the case. His testimony is very voluminous, and we shall only set out such portions as we deem necessary for a proper understanding and determination of the issues involved in this suit.

Parker lives at Clarendon, Ark., and has been a practicing lawyer there for 30 years. In regard to the Hughes loan, he testified that he went to Judge Mayo, the then county and probate judge, and advised with him before he made the loan; that Judge Mayo had lived in the neighborhood where Hughes resided, and knew all about him and his circumstances; that Judge Mayo approved the loan made to J. B. Hughes, and ordered him as guardian of said minors to make it. We quote from Parker's testimony the following:

"Q. And Judge Mayo was at that time judge of the probate court of Monroe County? A. Yes, sir. I then drew up the petition, as stated, and it was examined and allowed, and it, with all the Wilson papers, was burned at the fire. I never knew whether it was on or off the record until this suit had been filed. I heard the testimony of Mr. Hinton saying it had never been put on record, which was nothing uncommon for the clerk at that time. At that time Mr. Albert Hinton was deputy, acting for Mr. Mills, who was in the campaign. He began the campaign for Auditor in January or February, 1892, and remained in the campaign until the last of June, 1892."

Parker concedes that he did not account for the balance of purchase money of the Brinkley lots in his guardian's settlement. He testifies that he paid that amount to Sidney J. Wilson, the father of Earle M. Wilson at various times, and in detail gives the time of such payments and the circumstances connected therewith.

Additional facts will be stated or referred to in the opinion.

The demurrer to the complaint was never acted on by the court, and the chancellor, after hearing the evidence, charged Parker with the sum of $ 1,280.20, with 10 per cent. interest thereon from May 1, 1893, which amount is the balance due on the purchase money of the sale of the house and lot at Brinkley. The chancellor further charged him with the sum of $ 655 with 10 per cent. interest thereon from May 13, 1893, "which was the amount of the loan made to J. B. Hughes by the guardian H. A. Parker without any order from the Monroe Probate Court to make such loan."

A decree was accordingly entered against all of ...