State ex rel. Luck v. Atkins
| Decision Date | 24 May 1890 |
| Parties | STATE EX REL. LUCK v. ATKINS |
| Court | Arkansas Supreme Court |
APPEAL from Monroe Circuit Court in Chancery, M. T. SANDERS, Judge.
Action in name of the State, on the relation of T. B. Luck guardian, and the four minor heirs of W. M. Walkup, deceased against J. H. Atkins and others, as sureties on decedent's bond as guardian for such minors, to recover an indebtedness due by decedent as guardian to such minors as determined by the judgment of the probate court. Defendants' answer and cross-complaint alleged that decedent had left a homestead to the minors in value exceeding the amount of his indebtedness to them as guardian and asked that the cause be transferred to equity, and that they be subrogated to the rights of the minor heirs. The cause was transferred, and, there being no answer to the cross-complaint filed, a decree pro confesso was rendered, declaring the homestead to be an equitable set-off in favor of defendants, who were also cross-complainants, and plaintiffs were enjoined from further prosecution of the action on the bond.
Judgment reversed and cause remanded.
H. A. Parker for appellant.
1. It was not necessary to prove the claim against estate, or to wait until the estate was fully administered to bring suit. 48 Ark. 261.
2. Appellees were certainly not entitled to subrogation until they paid the debt. 1 N.E. 485; 124 U.S. 534. The right is never accorded to a mere volunteer. 120 U.S. 287; 3 N.E. 753; 11 A. 122; 14 N.W. 331. There can be no substitution to the rights of a party who is not wholly satisfied. 5 Wait, Ac. and Def., 213; 5 A. 877. Nor is it ever applied where it works injustice. 19 N.W. 580.
3. Art. 9, sec. 3, constitution, is for the protection of the minor, and not for his injury. The right is personal to the minors, and cannot be extended to bondsmen of the guardian. 27 N.W. 536; 2 A. 18; 5 Atl., Rep., 811; 1 A. 326; 7 A. 788; 12 N.E. 414; 27 N.W. 532, and notes; 5 S.W. 878. By sec. 6, art. 9, constitution, the homestead is vested absolutely in the children after mother dies, and by section 10 the minors have the same homestead right as their deceased parents. Under these sections the homestead comes to them free of liens or trust debts, and it is theirs absolutely.
Price & Green for appellees.
The children take just such an estate in the homestead as their father held, no more, no less. The homestead was subject to the debts enumerated in article 9. The case of Gilbert v. Neely, 35 Ark. 24, is conclusive. This decision was made under the constitution of 1868, but the provisions of the constitution of 1874 are substantially the same.
The case properly transferred to equity. 38 Ark. 557. Equity will always interfere to prevent multiplicity of suits. 4 Ark. 302. The decree was for the best interest of the children.
The controlling question in this case is settled by the judgment in Gilbert v. Neely, 35 Ark. 24. See, too Harris on Subrogation, secs. 281 et seq.; Sheldon on Subrogation, sec. 89; Rice v. Rice, 108 Ill. 199. In that case the sureties in a deceased guardian's bond, who were forced to make good the default of their principal, were held to be subrogated to the ward's right to subject the homestead of the guardian to sale for the payment of the debt contracted in his fiduciary capacity, as against the widow of the deceased guardian. The heirs being necessary parties, the cause was remanded in order that they might be brought in; and the opinion states that, if they should prove to be minors, their right to the homestead would in like manner be subordinate to the sureties' remedy to subject it to the payment of their demand. The rights of the parties in that case were governed by the constitution of 1868, while this cause is controlled by the provisions of the constitution of 1874; but there is nothing in the latter instrument to alter the rule established by the case cited. By section 3 of article 9 of the constitution of 1874, the homestead is not exempt from sale under process issued for the collection of money due in his fiduciary capacity from a trustee of an express trust; and guardians are specially mentioned as such trustees. In that respect the provisions of the latter constitution are specific in their application to this class of cases. As explained in the former case, the right of the minors to the homestead is a derivative right -- they succeed to it as their ancestor possessed it, subject to the liabilities which legally existed against it in his hands. His death does not displace the superior right of the creditor to...
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