White v. Moore

Decision Date05 December 1932
Docket Number30292
CourtMississippi Supreme Court
PartiesWHITE et al. v. MOORE

Division B

1. GUARDIAN AND WARD.

Guardian not presenting accounts as due and not charging himself, even in final account, with interest, could not have benefit of order permitting predecessor guardian to deposit money at four per cent. (Code 1930, sections 1885, 1889, 1890.)

2. GUARDIAN AND WARD.

Guardian not showing use made of ward's money held chargeable with eight per cent. interest (Code 1930, sections 1885, 1889, 1890).

3. GUARDIAN AND WARD.

Sworn account not accompanied by vouchers, and not approved by court order, is insufficient to support guardian's claim of credit for expenditures (Code 1930, sections 1889, 1890).

4. GUARDIAN AND WARD.

Wards' agreement to accede to credit claimed provided guardian could show he spent sums for their benefit required showing by legal evidence in open court; private investigation by chancellor being insufficient.

HON. T P. GUYTON, Chancellor.

APPEAL from chancery court of Winston county, HON. T. P. GUYTON Chancellor.

Suit by R. D. White and others against Clinton Moore, guardian. From the judgment, plaintiffs appeal. Reversed and remanded.

Reversed and remanded.

R. W. Boydstun and F. L. Reich, both of Louisville, for appellants.

Any guardian who fails to report to the court the fact that he has money of his ward not needed or allowed to be used for current expenditures and to ask the order of the Court as to the disposition of such money, shall be chargeable with interest on same at the rate of eight per cent per annum during the time of failure.

Section 1885, Code of 1930.

One guardian cannot take advantage of and be protected by the decrees and orders of the court which were secured by and were for the benefit and protection of his predecessor or any former guardian of the estate.

It is not discretionary with the court as to the rate of interest to be charged against guardian who violates provisions of the above section, but the statute makes it mandatory that said guardian be chargeable with eight per cent interest, and eight per cent interest only.

The chancery court or chancellor in violation, may, at discretion, settle the sum to be expended in the maintenance and education of a ward, having regard to his or her station, future prospects and destination; and may allow expenditures in excess of the income of the estate, and if necessary, may order sale of so much of the personal estate as may be necessary, to meet such expenditures. And if the personal estate and the rents and profits of the real estate be not sufficient for the maintenance and education of the ward, the court may, on investigation, decree the sale of such part of the real estate of the ward as may be necessary for the purpose; but if it be more advantageous to the ward the court may order the sale of real estate in preference to the sale of personal property; but 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.

Section 1876, Code of 1930.

Neither the court nor the guardian has any discretion as to the provision of the statute but it is mandatory upon the guardian to comply with the statute and secure an order of the court before he can expend any of the corpus of the estate. If he does so he does it at his own risk and peril and the court has no power or authority to allow the guardian credit for the expenditure so made nor to ratify and approve his acts.

The appellee herein could not be entitled to any credits for the sums claimed to have been expended by him. Section 1889 of the Mississippi of 1930 provides for the filing of all annual accounts and provides that a guardian shall show each item of his expenditure which shall be supported by legal voucher. Section 1890 of the Mississippi Code of 1930 provides that the vouchers of a guardian shall not be received, filed or allowed unless they conform or be made to conform to the requirements of law relating to the vouchers of executors and administrators.

Appellants stated that if appellee could make satisfactory proof that he had actually expended any sums of money for the benefit of appellants that they would be willing to give appellee credit therefor. However no proof was made, other than the statement of appellee, which was not satisfactory evidence to appellants and, therefore, the full amount of said expenditures is demanded by appellants."

E. M. Livingston, of Louisville, for appellee.

If some one will not qualify as guardian of a minor who has property, it shall be the duty of the chancery court or the chancellor in vacation to appoint the clerk of said court to be the guardian of the minor, who shall discharge the duties of guardian, under the order and direction of the court, and be subject to be dealt with as for contempt for failure, etc.

Section 1871, Code of 1930.

Where two or more clerks act successively for the same ward, no one of them (not having finally settled the estate) is entitled as compensation to five per centum commission on the value of the corpus of the ward's real estate, in addition to the commission on his personal estate. This case seems to adopt the theory that the guardianship under such circumstances is a continuous transaction for the protection of the ward's estate regardless of which clerk may serve as guardian.

Bass v. Maxwell, 25 So. 873.

To hold that each chancery clerk who acts as guardian for a minor should be required to procure a decree directing the disposition of the fund of the minor not needed to pay current expenses, would entail an endless expense in the way of attorney's fees and court cost, which would profit the minor nothing.

The spirit and purpose of the statute is to protect the property and estate of minors, and cause it to be administered as economically as possible rather than to impose unjust and unreasonable obligations on the guardian which will necessitate the expenditure of funds in needless court expense and attorney's fees.

It is of course, conceded that section 1876, Code of 1930, provides that 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 but in this case appellants waived their rights under this statute, when they incorporated in their exceptions to the...

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