| Ark. | May 15, 1882
All the questions in this cause arise on exceptions by a minor, acting sui juris, to a current settlement of her guardian with the probate court. She did not appear by next friend or special guardian. The matters in issue were tried by a jury in the probate court, and a verdict rendered against the guardian as if for a debt. The same course was pursued in the Circuit Court on appeal, where judgment was rendered that the guardian pay the ward thesum of $353.24, with costs. There was a motion for a new trial, and the evidence is brought up by bill of exceptions.
Without reference to the merits, it is plain that the whole •course of proceedings has been irregular, treating exceptions to a current account as a suit for the recovery of money, to be enforced by execution. Exceptions to accounts •are interlocutory proceedings, for the purpose of reforming •and correcting them, and the judgment or order on determining exceptions, is, properly, that the account be confirmed, if proper, or restated if erroneous.. Balances thus ascertained may .or may not be properly followed by orders of payment over, or by execution, according to the nature of the case. No such order in this case was proper, as the infant was not yet of age, and the balance found ought to have remained in the guardian’s hands until final settlement, unless expended in accordance with law.
A trial of exceptions, by a juiy, in the probate court, is •not contemplated by law. The function of the county and probate courts in such matters is rather that of an auditor, •clothed with judicial power, or that of a master stating an •account. It is not, usually, such work as juries can perform. Any Circuit Court has the power, under the Code practice, to order any special issue or issues, to be tried by •a jury, which before the Code, might have been so tried; but.that has no application to the probate courts. It would not doto have exceptions to accounts burdened with costs of jury trials. The judges must take the responsibility of ■determining the facts as well as the law.
The guardian had two wards, and rendered one account ■as to both, consolidating credits and expenditures. This should not have been permitted. The probate court should, •of its own motion, have struck it out, and directed the filing •of separate accounts for each ward. The charges against -each ward were not the same, and their rights would become confused by keeping accounts in this manner. The guardian stands to each ward as if there were no other. Connelly et al v. Weatherby, 33 Ark., 661.
The probate judge should not wait to be moved to correct errors in accounts of such fiduciaries, as he is required to supervise, but should refuse to confirm any settlement obviously improper. Otherwise the interests of minors-might often be sacrificed by failure of vigilance on the part of near relatives and next friends. For the same reason the-Circuit Court erred in proceeding to hear the exceptions, as= made, and determine them de novo, and to render a personal judgment against the guardian. Even if the settlement had been single, it should not have proceeded further than to-have tried the exceptions, settled the balance, and remanded the cause to the probate court for further proceedings on the basis of the balance so ascertained. The settlement did not purport to be a final one.
It would be premature to determine the matters of law upon the merits of the charges and credits. Reverse the-judgment of the Circuit Court, without costs, which cannot, be rendered in such case, against the minor, and remand the cause to the Circuit Court, with directions to quash the judgment of the probate court, and remand the cause to said court with directions to cause the guardian to file a separate-account with the ward, Julia Reed, and for further proceedings in accoi dance with law..
By this time the ward, as it appears, has come of age„ and the probate court may make a final settlement instead of acting upon a mere account current, and may in its new order, direct payment to the ward herself of all that maybe found due her. We will not anticipate error in the final action.
Reverse and remand for further proceedings.