| Ark. | Apr 7, 1924
(after stating the facts). It is unnecessary to cite authorities upon the rule, so often announced by this court, that a court of equity will not interfere with proceedings in probate courts for the settlement of an estate, except upon allegations of fraud or mistake. It is equally well settled that fraud or mistake cannot be charged without stating the facts and circumstances constituting it. It cannot be pleaded as a conclusion of law.
The answer and motion to transfer the case to the chancery court seeks relief against a judgment of the probate court restating and settling the first and final account of H. J. Tonkinson, as guardian of the minor children of W. R. Kendrick, deceased. The ground for the transfer is that rents amounting to $1,800 were, by mistake, charged against himself in the account as first stated by the guardian.
The defendants allege that this fact was brought to the attention of the probate court, and that said court promised to withhold its finding and judgment until the title to the lands from which the rent was collected should be adjudicated.
It was further alleged that, some time thereafter, and after the decision by the chancellor adjudicating the title to the lands to be in other parties than the estate of W. R. Kendrick, deceased, the probate court caused the attorneys for H. J. Tonkinson to be called before it, and announced that the court was ready to render judgment restating the account current of H. J. Tonkinson, guardian.
At the same time the probate court restated the account by holding' said guardian liable for the rent collected, althoug'k the chancery court had held that the title to said lands was not in said minors. Thus it will be seen that the defendants do not allege or pretend that the probate court took up the matter of restating' the account of H. J. Tonkins on as guardian without notice to them; but, on the contrary, they alleged that the judge of the probate court did call them before him while the court was in session, ¡and adjudicated the matter.
It is true that it held that the curator was accountable to the minors for rent which the chancery court had decreed did not belong to the minors, but this constituted at most an error of law. It appears from the record that the decree in the chancery case was rendered on the 2d day of March, 1921, although the decree was not entered of record until the 12th day of December, 1921. The judgment of the probate court restating the account of said H. J. Tonkinson was rendered on the 11th day of March, 1921. The probate court evidently had a different opinion of the law to that of the chancery court.
The parties had the right to appeal from the decision of each court, but no appeal appears to have been taken in either case.
The alleged grievances of the defendants are the results mainly, if not entirely, of their own fault and negligence. They were precluded by the judgment in the probate court from again contesting the conclusion reached by that court in the approval of the settlement of said guardian as to .all matters embraced in that settlement.
The probate court had jurisdiction to determine whether or not the guardian should be chargeable with the rent of the lands involved in the litigation in the chancery court. In the first place, it may be said that the time for the appeal from the decision of the chancery court in the case had not elapsed when the probate court rendered its decision, and it could not know whether or not an appeal would be taken from the decision of the chancery court.
It might have been the better practice to have waited until the time for appeal had expired, or until the matter had become finally settled in the chancery court; but the probate court was not required to wait. Even if it be said that the probate court abused its discretion in not waiting until the decision of the chancery court involving the title to the lands had become final, as it had announced that it would do, still its action in taking up the matter would at most , only constitute an error of proceeding on its part, which might have been reversed on appeal; but it could in no sense be said that the order of the probate court was void. In other words, a transfer of the case now to a court of equity could accomplish no more than could have been accomplished by an appeal by the guardian and his bondsmen from the judgment of the probate court restating and confirming his account.
If. the probate court wrongfully charged him with rents upon lands which did not belong to the minors, an appeal should have been prosecuted in apt time to reverse the judgment as being an erroneous one. The defendants are precluded by the judgment in that court from again contesting the matters embraced in the restated account and final settlement of said guardian adjudicated by the probate court. Jefferson v. Edrington, 53 Ark. 549; Nelson v. Cowling, 89 Ark. 334" date_filed="1909-02-08" court="Ark." case_name="Nelson v. Cowling">89 Ark. 334; and Beakley v. Cunningham, 112 Ark. 71" date_filed="1914-03-09" court="Ark." case_name="Beakley v. Cunningham">112 Ark. 71.
In the case last cited it was held that a judgment on final settlement of a guardian’s account is also conclusive upon the sureties on Ms bond.
It follows that there was no error in refusing to transfer the case to equity, and that the judgment was correct, and must be affirmed.