Opinion
No. 30292.
December 5, 1932.
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.
APPEAL from chancery court of Winston county. HON. T.P. GUYTON, Chancellor.
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 final account of their guardian the stipulation and condition that they were willing to give the guardian credit for the expenditures made by him provided he could show to the court that he actually spent the money for their benefit.
The final account of the guardian is sworn to and it is submitted that the verified account of the guardian is sufficient to show that the appellants received the benefit of the sums so expended. The sworn account together with the investigation made by the chancellor was sufficient to convince him that appellants had received the benefit of the money expended by their guardian and he allowed the guardian credit for all of such items so expended.
Appellee, Clinton Moore, was the duly elected and acting chancery clerk of Winston county from the first Monday in January, 1924, until the first Monday in January, 1928, suceeding B.M. McCully, who had theretofore been chancery clerk. While McCully was serving as chancery clerk, he was appointed guardian of the appellants. After the expiration of McCully's term of office, and on March 26, 1924, he resigned as guardian, and on said date paid over to appellee, who was then appointed guardian, the sum of one thousand two hundred sixty-eight dollars and ninety cents, the property of said wards. Although it was the duty of said guardian under the sections of the Code, which are now sections 1889 and 1890, Code 1930, to file annual accounts, supported by vouchers, and although it was the further duty of the guardian under the section of the Code, now section 1885, Code 1930, to report the money of his ward on hand and not needed for current expenditures and to ask the direction of the court what to do with the funds so held, in default of which the guardian "shall be chargeable with interest on the same at the rate of eight per centum per annum during the time of failure," the guardian filed no account or report whatever during his entire tenure as guardian, nor did he file any final account on the day of his resignation as guardian, to-wit, on June 6, 1928, on which date he simply turned over to his successor the sum of one thousand fifty-three dollars and eighty-eight cents, which was the original sum received, less two hundred fifteen dollars and twelve cents which he claimed to have expended in behalf of the wards, but for which no order of the court had been obtained.
When the wards arrived at age, they filed, on September 4, 1931, a petition against appellee demanding that he file his final account; in response to which appellee on October 2, 1931, filed what purports to be his final account, wherein he charged himself with the receipt of the sum of one thousand two hundred sixty-eight dollars and ninety cents on March 28, 1924, and credited himself with four alleged items of expenditure amounting to two hundred fifteen dollars and twelve cents, but for which no vouchers were exhibited, and credited himself with the further sum of one thousand fifty-three dollars and eighty-eight cents paid to his successor as guardian. Appellants excepted to said final account, because it did not account to the wards for the statutory interest at the rate of eight per cent. per annum, and because the expenditures in the sum of two hundred fifteen dollars and twelve cents were not supported by vouchers as required by law. The chancellor sustained the exceptions to the extent of allowing interest at the rate of four per cent. per annum, but declined to apply the eight per cent. statute above cited, and he allowed the guardian credit for the two hundred fifteen dollars and twelve cents.
The reason assigned by the decree of the chancellor for allowance of only four per cent. per annum on the money held by the guardian, unreported to the court, and which, so far as the record shows, remained "dead in his hands," was that the predecessor guardian, McCully, had obtained an order permitting him to deposit the money in bank at four per cent., and that appellee, the successor guardian, should have the benefit of that order. If appellee had made his annual accounts showing the money to be on deposit in bank at four per cent., and had charged himself in each of his annual accounts, due to have been made, with the said four per cent., and had charged himself with this four per cent interest in his final account, it may be that his contention could be maintained, and that he might rely on the order made during the preceding guardianship. But we have no hesitancy whatever in holding that, under the facts here set out, he cannot avail of the order mentioned. He did not present accounts as due, showing that he had acted upon that order and did not charge himself accordingly — he did not do so even in his final account filed in response to the citation to compel him to account. He did not show then, and does not show now, what was being done by him with this money from March 25, 1924, to June 15, 1928, more than four years. So far as any showing is made by him in this record, the money may have been mingled with his own money, and may have been in use by him for his own personal account. The chancellor should have applied the eight per cent statute. It is the purpose of that statute to safeguard the funds of minors, and to secure their profitable investment, and above all to prevent guardians from making personal use of the estate of their wards. The statute ought to be, and must be, firmly enforced.
No reason is found in the decree for the allowance to the guardian of the two hundred fifteen dollars and twelve cents, which, as already said, is not supported by legal vouchers. It is said in the argument, however, that it was because of the following paragraph in the exceptions of the wards: "Your petitioners here by their solicitors show to the court that they have no desire to oppress said guardian; that although said account of two hundred fifteen dollars and twelve cents is not accompanied by vouchers, legal or otherwise, your petitioners are willing to allow accounts against their funds to the amount of two hundred fifteen dollars and twelve cents, provided said guardian is able to show to the court that he actually spent said sums for the benefit of complainants." And it is further said that the chancellor "made an investigation" of the items mentioned, and was convinced thereby that the wards received the benefit of said expenditures, and it is argued also that the sworn account is sufficient, prima facie, to support the claim of credit for the expenditures. A sworn account not accompanied by the vouchers required by law, and not approved by an order of the court, is insufficient, and is not of any probative value in support of the expenditures for which credit is therein claimed. And as to an investigation made by the chancellor, there is no evidence in the record to that effect, nor is there any such a recital in the decree; and, if there had been, it would not have supported the allowance. Appellants agreed to accede to the credit, "provided the guardian is able to show to the court that he actually spent said sums for the benefit of complainants." This means that the guardian must so show by legal evidence and in open court according to the usual course of judicial procedure, not that the chancellor could make a private investigation. No evidence was submitted in open court by the guardian according to the record now before us.
Reversed and remanded.