Wallace v. Swepston

• Decision Date: 18 March 1905
• Parties: WALLACE v. SWEPSTON
• Court: Arkansas Supreme Court

86 S.W. 398

74 Ark. 520

WALLACE v. SWEPSTON

Supreme Court of Arkansas

March 18, 1905

Appeal from Crittenden Chancery Court, EDWARD D. ROBERTSON Chancellor.

Reversed.

STATEMENT BY THE COURT.

Appellants are the surviving children and heirs at law of Robert C Wallace, deceased, from whom they inherit lands, and who was one of the sureties on the bond of John W. Guerrant, as guardian of the person and estate of appellee when she was a minor. This is a suit brought by appellee in the chancery court to recover from the estate of said deceased surety Robt. C. Wallace, on the bond of said guardian, and to enforce against the lands inherited by appellants from said Wallace one-half of the amount due appellee from the said guardian, as fixed by a former decree of the chancery court of Crittenden County, surcharging his accounts in the probate court.

From a decree in favor of the plaintiff granting the relief prayed for the defendants appealed to this court. The facts alleged in the pleadings and shown by the proof are practically undisputed, and are as follows:

On October 30, 1870, John W. Guerrant was appointed guardian of the person and estate of appellee, who was then an infant and owned a considerable estate, and gave bond as such guardian in the sum of $ 10,000, with Robt. C. Wallace and J. R Jenkins as sureties. Robt. C. Wallace died April 2, 1875 while the guardianship of appellee was still pending, and administration was immediately commenced upon his estate. He left a large estate, both real and personal, including these lands, which descended to his children, the appellants and two others who died subsequently, and the administration upon his estate continued, through the administrator originally appointed and an administrator de bonis non appointed later, until April 23, 1890, when it was finally closed.

On October 9, 1876, the probate court made an order revoking the letters of guardianship issued to Guerrant because of his failure to file his general settlement accounts; and at the next term of January 8, 1877, said court made and entered an order purporting to annul the former order, and attempting to reinstate the letter of guardianship revoked by the former. On the same day the guardian filed his settlement account showing a balance in his hands of $ 5,160.05, as of December 24, 1875, which account was by the probate court at the October term, 1877, duly confirmed, and thereafter the guardianship was treated by the court and guardian as still pending, and the said letters as still in force.

On July 10, 1883, after the attainment by appellee of her age of majority, said guardian filed in the probate court his final settlement, and on October 10, 1883, the probate court made an order, after disallowing some of the items and vouchers therein, confirming said account, and finding a balance of $ 1,292.63 in hands of said guardian due his ward, and directing him to pay the same over to his ward, the appellee.

On August 29, 1883, appellee and her husband commenced in the circuit court of Crittenden County in chancery a suit against the guardian and J. R. Jenkins, one of said sureties on his bond (omitting therefrom the heirs and administrator of Wallace, the other surety), alleging fraud committed by said guardian in his various settlement accounts, and praying that the accounts be surcharged and corrected, and decree entered against the guardian and said surety for the proper amount due. The guardian, Guerrant, and said surety, Jenkins, both died while the suit was pending and before final decree, and the cause was revived against their respective administrators; and on May 2, 1895, after reference to a master to state the accounts and the filing of his report, a final decree was entered, in accordance with the prayer of the complaint, in favor of the plaintiff against the estate of Guerrant in the sum of $ 15,581.31, of which the sum of $ 6,120.99 was also decreed against the estate of the surety, Jenkins.

An appeal to this court from that decree was prosecuted by the administrator of Jenkins, and this court decided that the guardianship ended with the order of the probate court October 14, 1876, revoking the letters; that the order reinstating the same at the next term was void as to the sureties on the bond, and that the liabilities must be fixed according to the amount due by the guardian at that time. This court modified the decree of the chancellor against the surety, and reduced the amount found to be due to the sum of $ 5,160.05, the amount shown by said guardian to be due his ward by his settlement account filed 1877, without interest. See Haden v. Swepston, 64 Ark. 477.

Subsequently appellee received from the estate of Guerrant the sum of $ 2,157.40 on January 23, 1899, and $ 2,500 from the widow of Jenkins on August 16, 1899, in compromise of all liability of said estate of Jenkins.

The present suit was commenced on August 19, 1899, and the final decree appealed from is for one-half of amount ($ 5,160.05) of the former decree rendered against the estate of the guardian and other surety.

Cause reversed and remanded.

W. M. Randolph, George Randolph and Wassell Randolph, for appellants.

Appellee's claim should have been presented under the two years' statute and allowed against the Wallace estate. 64 Ark. 477. The court had no jurisdiction. 48 Ark. 544; 23 Ark. 93; 25 Ark. 108. Parties and privies only are affected by judgments or decrees. 17 Ark. 203; 60 Ark. 369; 153 U.S. 109; 189 U.S. 433; 52 Ark. 350, 499. A judgment against an administrator ad litem does not bind any party in interest in the subject-matter not lawful before the court. 27 Ark. 339; 51 Ark. 83; 56 Ark. 324; 21 Ark. 447; 25 Ark. 114. The decree against Buck as administrator was void as to appellants. Sand. & H. Dig. §§ 4190, 5928; 27 Ark. 340; 51 Ark. 83; 56 Ark. 333; 24 Ark. 569; 28 Ark. 253. As to matters of administration, the jurisdiction of the probate court is conclusive. 39 Ark. 575, 727; 34 Ark. 63; 40 Ark. 433; 51 Ark. 361; 50 Ark. 34; 49 Ark. 51. Appellee was guilty of laches. 1 Brandt. Sur. §§ 1, 137, 574; 16 Ark. 474; 30 Ark. 66; 33 Ark. 727; 57 Ark. 583; 142; 46 Ark. 25; 64 Ark. 345; 58 Ark. 580; 61 Ark. 527, 575; 70 Ark. 185; 63 Ark. 405. Upon the death of Robt. C. Wallace his real estate went immediately to his heirs at law. 5 Ark. 608; 8 Ark. 46; 27 Ark. 235; 30 Ark. 775; 42 Ark. 25; 46 Ark. 373; 38 Ark. 475; 56 Ark. 470; 71 Ark. 601. If the personal property is sufficient, land cannot be sold for the payment of debts. 63 N.Y. 438; 5 Paige, 254; 74 Ill. 134; 89 Ill. 119; 71 N.C. 66; 85 Ill. 428; 62 Miss. 390; 2 Tenn. Chy. 331; 47 Ark. 222; 5 Ark. 468. The action against the estate of Robt. C. Wallace and his heirs is barred. Sand. & H. Dig. § 4827; 48 Ark. 277; 64 Ark. 345; 6 Ark. 14; 14 Ark. 234; 17 Ark. 533; 51 Ark. 232; 63 Ark. 218; 31 Ark. 229; 53 Ark. 291; 35 Ark. 93; 48 Ark. 262; 63 Ark. 218; 53 Ark. 418; 45 Ark. 495; 49 Ark. 75; 113 U.S. 449; 33 Ark. 658; 39 Ark. 577; 45 Ark. 299. The validity of a guardian's appointment cannot be questioned collaterally. 53 Ark. 42; 51 Ark. 281; 19 Ark. 499; 26 Ark. 421; 32 Ark. 97; 40 Ark. 219; 48 Ark. 261; 52 Ark. 341. The doctrine of estoppel applies to appellee's claim. 14 Ark. 398; 25 Ark. 109; 55 Ark. 29; 57 Ark. 190; 52 Ark. 499; 30 Ark. 198; 51 Ark. 281; 2 Brandt. Sur. §§ 521, 576; 80 Pa.St. 167; 18 Ark. 600; 54 Ark. 480; 25 Ark. 108; 53 Ark. 37.

L. P. Berry, A. B. Shafer and N.W. Norton, for appellee.

Jurisdiction is in equity only. 32 Ark. 714. The heirs are constructive trustees, 40 Ark. 433; 31 Ark. 229; 15 Ark. 412. There was no cause of action until final settlement of the guardianship. 63 Ark. 218; 37 S.W. 881; 65 Ark. 415; 46 S.W. 937. A release of a surety is no release of a principal. 44 Ark. 349.

OPINION

MCCULLOCH, J., (after stating the facts.)

Appellants among other defenses tendered by their answer, pleaded the statute of limitations.

It has been held in many decisions of this court that the cause of action against the surety on a guardian's bond does not accrue until the amount of the liability is established by an order of the probate court, and an order is made by said court directing the amount to be paid over; and that the statute of limitations does not commence to run against an action on the bond until that time. Padgett v. Norman, 44 Ark. 490; Vance v. Beattie, 35 Ark. 93; Connelly v. Weatherford, 33 Ark. 658; Norton v. Miller, 25 Ark. 108.

This doctrine is limited, however, so far as the prerequisite of an order to pay over is concerned, to settlements which are not final, and where the guardianship is still left continuing. Where the guardianship relation is closed and ended by the death of the guardian, or the revocation of his letters, or by the coming of age of the ward, and the probate court adjusts the accounts, and establishes the amount due from the guardian, the cause of action accrues at once, if there be some person capable of suing. Smith v. Smithson, 48 Ark. 261, 3 S.W. 49. If there be then no one who can lawfully receive the amount, or sue for its recovery, the cause of action is postponed, and limitation does not begin to run until there is some one capable of suing. Hanf v. Whittington, 42 Ark. 491.

The order of the probate court rendered on October 14, 1876, revoking the letters of the guardian, John W. Guerrant, terminated the guardianship. The order made at the next succeeding term of the court, attempting to reinstate him as guardian, was ineffectual for the purpose, as far as the sureties on his bond are concerned. Haden v. Swepston, 64 Ark. 477, 43 S.W. 393.

The guardian then filed his settlement account, and the court subsequently examined and confirmed it, thus establishing the amount due from the...