194 S.W. 1132 | Tex. App. | 1917
It appeared from the final account that appellant, as appellee's guardian, had received $835.42, being the aggregate of sums due him as a pension under laws of the United States, and had paid out on his account sums aggregating $1,043.43. It was not contended in the court below, nor is it here, that the sums she so paid out, or any of them, did not represent proper and necessary expenses incurred in the education and maintenance of appellee while a minor. And, it appearing that appellant had no means of her own enabling her to discharge the duty she owed appellee as his mother to support him while a minor, it was not contended in that court, nor is it here, that appellant was not entitled, as appellee's guardian, to use the money she held for him as her account showed she had used it, if the money was "income of his estate" within the meaning of article 4131, Vernon's Statutes. The contention was, and is, that it was not such "income," and therefore that she could not use it as she did in the absence, as was the case, of an order of the probate court authorizing and directing her to so use it. So, it seems, the question presented is this one: Was the pension money in appellant's hands as guardian "income" of appellee's estate or not?
If this question should be answered in the negative, the judgment of the court below was in accordance to law (article 4131, Vernon's Statutes; Smythe v. Lumpkin, *1134
The article of the Statutes referred to is as follows:
"The court may direct the guardian of the person to expend, for the education and maintenance of his ward, a specific sum, although such sum may exceed the income of the ward's estate; but, without such direction of the court, the guardian shall not be allowed, in any case, for the education and maintenance of the ward, more than the clear income of the estate."
If the language of the statute is given effect, and it must be, then, clearly, the question must be answered in the negative; for if the "income" which a guardian without an order of court is authorized to expend for the education and maintenance of his ward must arise from an "estate" owned by the latter, it is plain that there must be such an estate before there can be such income." As appellee owned nothing except the pension money, unless that was an estate he owned nothing from which an income could arise. If it was an "estate," and, clearly, it was, of course it was not "income of an estate" within the language of the statute; for it could not be "income from an estate" if it was the estate itself. It follows, we think, that the fund in appellant's hand as not "income" of appellee's estate, and therefore that she lawfully could not use it for his education and maintenance in the absence of an order of court directing her to do so.
Appellant insists the purpose of the Congress in providing the pension being, she asserts, to "assist the pensioner in providing for his daily wants" (Price v. Society for Savings,
Appellant further insists that allowance of the credits she claimed was authorized by the concluding clause of an article (4278) of Vernon's Statutes as follows:
"In the settlement of any of the accounts of the guardian, he shall account for the reasonable value of the labor or services of his ward, or the proceeds thereof, if any such labor or services have been rendered by such ward; and the guardian shall be entitled to reasonable credits for the board, clothing, and maintenance of his ward."
But the clause invoked in the article set out must be construed in connection with other provisions of the statutes. When so construed, it means, we think, that the guardian shall be entitled to credits as specified when same represent expenditures made by him as authorized by law, and not when they represent expenditures made on account of his ward without authority of, If not in defiance of the requirements of, the law.
There is no error in the judgment, and it is affirmed.
