23 Miss. 189 | Miss. | 1851
This case comes up by appeal from a decision of the probate court of Yazoo county made on a bill of review, filed by Lamar and wife against Austin, as administrator on the estate of Jesse Cole deceased, and also as guardian of Mrs. Lamar, who is the daughter of Cole, who died in 1832. In the same year Austin administered on Cole’s estate, and proceeded in a course of administration until 1841, when he made a final settlement, showing a balance due the estate of $5514.67, and was discharged from his administration. In regard to the attempt to review this settlement we need say but little. We have repeatedly decided that such settlements were final and conclusive, operating as judgments of a court of competent authority, with jurisdiction of the subject-matter and of the persons, and cannot be called in question except by a direct proceeding by appeal, or writ of error. We have also decided that the act of 1846, allowing bills of review in the probate courts, does not apply to any final judgment of that court made before the passage of the act. These decisions dispose of all the questions which relate to the administration account. If there was maladministration, it must be reached in a different way.
It is also alleged in the bill, that he has charged his wards with large sums of money for their maintenance and education, without a previous order of court, settling the amount to be annually expended. The accounts show this state of facts. The guardian received nothing but money for his wards; he neither loaned it nor used it; but yearly expended portions of the capital, without an order of court, until the original sum was diminished to less than half its amount. The law is very clear on this subject. It declares that the orphans’ court shall settle the amount to be expended, having regard to the condition and future prospects of the ward, and may, if necessary, allow the expenditures to exceed the income. Hutch. Code, 505, sec. 131. By a subsequent section it is expressly ’declared the guardian shall not exceed the income of the ward, unless allowed to do so by order of court. Sect. 133. This law evidently provides for the order to be made in-advance of the expenditure; and it leaves no room for doubt; there is no discretion left. If the guardian exceed the income of the ward, he must do so at his peril, however hard the case may be. The court may doubtless allow a guardian to retain such amount as he may have necessarily expended for his ward, having a due regard to the condition and future prospects of the ward, just as it would have made the allowance in advance; but no such allowance can be made to exceed the income of the ward. The guardian cannot, without express authority in advance, encroach upon the capital of the ward, whether that capital .'be in money or property. If a guardian