Gregory v. Orr

61 Miss. 307 | Miss. | 1883

Chalmers, J.,

delivered the opinion of the court.

The Code of 1881 had no provision like that contained in Art. 32, p. 431, of Code of 1857, that where a guardian was personally interested in the proceedings, the interests of his ward should be protected by a guardian ad litem. The final settlement as executor in this case in 1872 was, therefore, valid, though no guardian ad litem was appointed. It was not necessary to cite the minors. Burruss v. Burruss, 56 Miss. The accounting and settlement between the guardian and wards which took place out of court, and shortly after the latter had attained majority, does not, under the facts of this case, relieve the former from making a formal account and settlement now. It seems strongly intimated in the case of Sullivan v. Blackwell, 6 Cushman 737, that nothing save a full and formal settlement in court can acquit the guardian of liability as such, but we do not think that the court intended'to go to that extent, nor can such a doctrine be maintained. Outside and informal settlements between guardians and wards are, however, much disfavored by the law and jealously scrutinized by the courts. The guardian who relies upon them must clearly show that he made a full disclosure of everything to the ward, and that the latter knew and understood that he was making a full and final settlement. It is not enough 'that the ward could have obtained the requisite information by the exertion even of ordinary care. It must be shown that it was laid before him, and that he knew what he was doing. It is not necessary to prove that the amount paid was actually the true amount due, but it is essential that the ward should have had laid before him all the important facts and figures and thereby allowed with his eyes open to decide whether he would accept the sum tendered him or not. The burden of showing that this was done and that the ward not only had opportunity to ascertain his rights, but understood that the settlement then being made was a final one rests upon the guardian. The meagre testimony in this case leaves it doubtful whether the wards were aware that they were making a final settlement, doubtful whether injustice was not actually done them, and certain that the books and papers showing the past and present condition of the estate were not really laid before them. The fact that these were accessible, if they had been demanded, was not enough. The wards should have been invited and offered opportunity to examine them fully.

Decree reversed and cause remanded with directions that_ the guardian he compelled now to malee a final settlement.