Darter v. Speirs

61 Miss. 148 | Miss. | 1883

Chalmers, J.,

delivered the opinion of the court.

Section 2111, Code 1880, declares that “the guardian of a minor, who has a father or mother, shall not expend anything for the support or education of the ward until the court or the Chancellor in vacation shall have ordered, that expenditure for that purpose shall be made by the guardian.” This language plainly contemplates a precedent order by the court or Chancellor, and deprives the court of the power to ratify and sanction such expenditures by a subsequent order. Unless the order precedes the expenditure, the latter is condemned by the statute and cannot be made valid by any subsequent ratification. Such has been the settled construction, by numerous decisions, of §2103 of the Code, with reference to expenditures in excess of the ward’s income, á construction which was adhered to under circumstances of great hardship in the case of Boyd v. Hawkins, 60 Miss. 277. The section with reference to expenditures on behalf of wards with living parents (§2111) seems much more clearly to require a precedent order sanctioning the expenditure than § 2103, with regard to exceeding the income. No tenable reason can be given for affixing different constructions upon the two statutes. It is insisted that a stranger who furnishes necessaries to a minor can make the estate of the minor liable, and that a guardian, by an original bill, under the same circumstances, must have the same right, It is shown by the record in this case that the guardian did not furnish his own money but that of the wards in his hands, but the result would be the same where he advanced the money expecting reimbursement out of the estate to come into his hands. Any other construction would nullify the statute. Boyd v. Hawkins, ubi supra.

Reversed and, remanded.