Opinion
14261
March 27, 1936.
Before DENNIS, J., Marlboro, May, 1935. Affirmed.
Proceeding by Pauline Harper Hinson, a minor, by her guardian ad litem, J.B. Hinson, against J.G. McLaurin as public guardian and as Judge of Probate for Marlboro County and another. Judgment for defendants and plaintiff appeals.
The report of Stephen C. Chapman, Special Referee, follows:
Pursuant to order of reference to me directed, I held a reference in the above-styled cause, and a copy of the testimony is herewith handed up along with this report.
The plaintiff, who is still a minor, by her guardian ad litem, has brought this action to require J.G. McLaurin, Judge of probate, as public guardian for her, to account.
The plaintiff contends that the said guardian negligently and without procuring the approval of the Court, as required by the statutes, invested funds of the minor and has failed to make his returns to the Judge of the Circuit Court, as required by law. The defendant admits that at certain times he did not file annual accounts and returns, but states that he did not do so because it would have served no useful purpose, as there was practically nothing new to show to the Court, and it would have simply involved additional costs in the matter which would have come out of the minor's property. He further contends that he has handled the matter to the best of his ability, and sought and obtained approval of the Court for all investments which he has made.
It appears from the records placed in evidence that prior to the commencement of this action the defendant had filed a full statement of his receipts and disbursements, which return is sworn to the 8th day of February, 1935; and that he had previously filed returns with the Court showing all of his receipts and disbursements from the beginning of the trust up to the date of this last return. There has been no question raised but that these returns contain a complete statement of his receipts and disbursements, but plaintiff challenges the right of the guardian to have made the investment disbursements and some few of the others. It appears from the evidence that the Judge of Probate has kept at all times in his office, a book of records of estates handled by him as public guardian and Judge of Probate, which has been open to inspection by the public and kept as a public record at all times. The returns filed by the Judge of Probate were taken from this record of the receipts and disbursements in the matter of Pauline Harper Hinson. This account, it appears, has from time to time been audited by a certified public accountant, and the checks and vouchers verified. It appears that the matter is confused, only by the fact that some of the records in the office of the Clerk of Court pertaining to public guardianship matters have been misplaced. It appears that the record books of public guardianship matters kept in the office of the Clerk of Court and bearing No. 1 cannot be located. Record book No. 2, which was introduced in evidence and which reflects the returns of the defendant in this matter and the proceedings in connection therewith, was started subsequent to the beginning of this trust, and naturally early proceedings in the matter, about which there is the main contention, do not and would not appear in this record book. The Clerk of Court testified that the recording in this book was started in the fall of 1924, or early part of 1925, and the Judge of Probate was appointed as public guardian for Pauline Harper, now Hinson, presumably in April, 1924; and the investment in the mortgage of A.D. Matheson was also made in April, 1924. If the proceedings in connection with these two matters had been recorded promptly, they would have been recorded in the clerk's public guardian record book No. 1, which is now misplaced and cannot be found. The proceedings for the investment of the ward's funds in the purchase of a house and for repairs to the house, which constituted the investment of the ward's funds in other than in the Matheson mortgage, took place after the commencement of clerk's record book No. 2, and are recorded therein, are regular, and show that they were approved by the Court. So the only investment that is open to question is the investment of $1,000.00 of the ward's funds in a mortgage to A.D. Matheson.
It appears from the testimony and from the records that from the commencement of the trust the Judge of Probate, as public guardian, has consulted with the ward's father and sought the advice of Messrs. Rogers Ellerbe, attorneys, throughout, T.I. Rogers, Esq., representing the guardian in the matter up until January, 1925, when the law firm of Rogers Ellerbe was established, and the firm from that time on. Inasmuch as record book No. 1 from the clerk's office could not be located, it was necessary for the defendant to prove otherwise that the approval of the Matheson mortgage was sought and obtained from the Circuit Judge, as required by the statutes. The defendant introduced in evidence what purports to be a copy of a petition to the Court for the investment in the Matheson mortgage, which also contained statements by way of testimony from J.E. Harper, T.C. Crosland, A.D. Matheson, and others, to the effect that the land which was to be given as security was well worth the sum of $5,000.00, and that it was a proper investment; and the order of Judge E.C. Dennis authorized and approving said investment. Plaintiff challenges this. There is in the record a statement from J.E. Harper, the father of the ward, that he took part in this proceeding and that the same was had, and T.C. Crosland and A.D. Matheson also testified that they took part in the proceeding and gave the testimony as reflected by the copy introduced in evidence by this defendant.
Further, it appears that the day after the loan was made the Judge of Probate, as public guardian for the plaintiff, gave T.I. Rogers, Esq., a check in payment for his services in connection with the matter. It also appears that A.D. Matheson had purchased the property a short time before, within the preceding year, at a cost to him of $5,000.00, and that at the time A.D. Matheson was considered financially well to do. It is apparent that the Court would not have hesitated to approve the making of the loan at that time. It also appears that the record of the appointment of J.G. McLaurin, Judge of Probate, as public guardian does not show in the record book now in the clerk's office, but if the same had been promptly recorded it would have been in the record book which is now missing. It further appears that notice of application for his appointment was duly published in the Pee Dee Advocate, a newspaper published in Marlboro County; said newspaper dated April 17, 1924, containing said notice was placed in evidence. Also immediately after the appointment would have been made the Clerk of Court paid over to the defendant a considerable sum of money which he had in his hands for the ward, and it is evident that he would not have done so if the showing of the appointment had not appeared at that time. The evidence convinces me that the Judge of Probate was regularly appointed, and that he sought and obtained the approval from the Court for the investment in the A.D. Matheson mortgage, although the record which should be in the clerk's office is now misplaced. Particularly so as a return, filed by the Judge of Probate with the presiding Judge in open Court in 1925, which reflected the investment of $1,000.00 of the ward's funds in the Matheson mortgage, was approved by the same judge from whom they sought and obtained the approval of the investment, as reflected by the copy of the proceeding placed in evidence. I, therefore, find that the investments made by the defendant out of the funds of the minor were properly approved by the Court and are not now open to question by me.
It appears from time to time the guardian turned over to the father of the minor, who was living with him, small amounts of money from the income from the investment to be used for the minor. It seems to me that this is the usual custom; the amounts were small, and in addition a copy of a petition and order authorizing him to do so, dated in 1924, was placed in evidence.
The Matheson mortgage was for $2,000.00; $1,000.00 being of the plaintiff's funds, and the other $1,000.00 being from funds of her sister, Lois Harper. The mortgage was foreclosed a few years ago and the property bought in by the guardian for the benefit of the minors: the same was reported to the Court and the record contains an order signed by the resident Judge approving same.
Nowhere in the record does anything appear to show that the defendant misappropriated or received for his own benefit one penny of the ward's funds; nor does the record show any unfaithfulness on his part whatever. The defendant, before the commencement of the action, had filed returns reflecting a complete statement of his receipts and disbursements. He has fully accounted, and I recommend that his returns be approved and the complaint dismissed.
Messrs. J.W. LeGrand and J.E. Dudley, for appellant.
Messrs. Rogers Ellerbe, for respondent, cite: As to confirmation of finding of fact by Master: 134 S.C. 58.
March 27, 1936. The opinion of the Court was delivered by
This appeal is from an order of his Honor, Judge Dennis, who "confirmed in all particulars" the report of the Special Referee and gave judgment for the defendants.
We think the order should be affirmed. The appellant raises by her exceptions a number of questions, but we find no substantial merit in any of them. A careful study of the record discloses that the Referee, as held by the trial Judge, was correct in his findings and conclusions, and we approve his report and adopt it as the opinion of the Court. Let it be reported.
All exceptions are overruled, and the judgment of the Circuit Court is affirmed.
MESSRS. JUSTICES CARTER, BONHAM, BAKER, and FISHBURNE concur.