Shell v. Sheets

• Decision Date: 09 June 1941
• Docket Number: 4-6390
• Citation: 152 S.W.2d 301,202 Ark. 708
• Parties: SHELL, GUARDIAN, v. SHEETS, GUARDIAN
• Court: Arkansas Supreme Court

152 S.W.2d 301

202 Ark. 708

SHELL, GUARDIAN, v. SHEETS, GUARDIAN

4-6390

Supreme Court of Arkansas

June 9, 1941

Appeal from Jackson Probate Court; A. S. Irby, Judge; reversed.

Judgment reversed and cause dismissed.

Pickens & Pickens, John Sherrill and Frank Wills, for appellant.

D Leonard Lingo, for appellee.

OPINION

SMITH, J.

E. B Shell, a resident of Jackson county, died intestate in the year 1920. His estate consisted of approximately 240 acres of land, of which about 165 were in cultivation and constituted his homestead. He left considerable personal property and a life insurance policy for $ 2,000 payable to his two oldest children. The policy was written prior to the birth of two other children later born. Surviving him were his widow, Mrs. Ola Shell, and four children, Rudy, Mardell, Lois, and Junior, the three last named being the children by a former marriage. Rudy was his only child by Ola, and Rudy died two years after his father's death.

Mr. Shell was largely indebted, the exact amount of which does not appear except that there was an outstanding mortgage on the land to secure $ 2,600 of this indebtedness.

Mardell, the oldest of these children, was only eight years old at the time of the death of her father. The widow was appointed administratrix of her deceased husband's estate, and was also appointed guardian for his minor children. The personalty was consumed in paying the debts, and the widow waived her claim of dower in the personalty to permit this to be done, and there was no source of income of the estate except the rents of the land, which the court found averaged $ 600 per year. This finding is questioned, it being contended that the rents were greater; but we do not think the testimony shows that the net rents were in excess of that average amount. The widow paid, not only the general taxes, but the special assessments of a drainage improvement district as well as the necessary and indispensable expenses of maintenance and repair. She kept the taxes paid. The testimony does not show how much of the rents was collected from the homestead as distinguished from the remainder of the land. But, from these rents, and without other income from the estate, the widow kept these children together and reared them. They were given all the school and other advantages which the community afforded.

As in too many other cases of this kind, the widow made none of the settlements required by law of her administration and guardianship. Her explanation of this failure was that there was nothing to report, as all income was consumed and barely sufficed to keep the family going. It was shown that Mardell worked occasionally in the field, but the widow worked there more frequently.

The $ 2,000 insurance money belonging to Mardell and Lois was invested, under the order of the probate court, in a real estate mortgage, which proved to be unfortunate, and from which a large loss was sustained, but no attempt was made to charge the widow with liability for the loss thus sustained.

On October 25, 1939, Birdie Sheets, as guardian for Mardell, an incompetent person, filed petition for citation of Mrs. Shell, alleging that Mardell was declared incompetent on February 4, 1938, by the probate court for the eastern district of Lawrence county.

Mrs. Shell filed a final account, according to which she was not indebted to her ward in any sum, but the balance was in her favor. Exceptions to this account were heard, which resulted in a judgment in favor of the ward in the sum of $ 1,980.20, from which judgment is this appeal, and from which judgment there is a cross-appeal by Mardell's present guardian.

It appears that Mrs. Shell gave bond as guardian in the sum of $ 10,000, the amount of which was later reduced to $ 1,000. The validity of this order of reduction is one of the several questions discussed in the briefs of opposing counsel; but this is a question which will not require decision in view of the conclusions which we have reached on other features of the case.

In the findings of fact, upon which the judgment is predicated, it is recited that "The court disregards all items of charges and credits after Mardell became 21 years old in 1934 for want of jurisdiction."

It is true, of course, that Mrs. Shell should have filed regular reports of her administration and of her guardianship, and that she may be called to account for her failure to do so. It was said in Campbell v. Clark, 63 Ark. 450, 39 S.W. 262, that if this were not done, the door would be open for the perpetration of all manner of frauds against the estates of minors. That case is cited also in support of the proposition that, where a ward lives with her guardian as a member of his family, receiving board and clothing and rendering the ordinary household services required by parents of their children, such services will be presumed, in the absence of a clear showing to the contrary, to be a sufficient compensation for the ward's support. Reynolds v. Jones, 63 Ark. 259, 38 S.W. 151, is to the same effect.

It is, therefore, insisted that, as Mrs. Shell made no charge for which she claimed credit, she should not now be allowed credit for the living expenses of her ward. There are two answers to this contention. It is provided by statute (§ 6297, Pope's Digest) that "The probate court may direct a guardian to expend for the maintenance and education of his ward a specified sum, although such sum may exceed the income of the ward's estate; but, without such direction, the guardian shall not be allowed, in any case, for the maintenance and education of the ward, more than the clear income of the estate."

It is an undisputed fact that the widow and her wards had their living from the income of the land, which was all...