Jefferson v. Glover

46 Miss. 510 | Miss. | 1872

Simeall, J. :

The questions arise on exceptions taken to the final account of C. C. Glover, guardian of Mary W. Shaw and Margaret F. Shaw. Glover, many years ago, had been appointed guardian for these minors by the county court of Fayette county, Tennessee. After settling sundry accounts with his wards in that court, he removed, with his family, of which his wards were members (he having intermarried with their mother prior to his appointment in Tennessee), to Bolivar county, in this state, in. the year 1860. In January, 1861, Glover made application to the probate court of Bolivar county for letters of guardianship, which were granted to him, the order reciting that the minors, being over fourteen years of age, consented thereto in writing, and further reciting that the guardianship applied to the estate of his wards then in Bolivar county, or which may thereafter be removed into the county. The penalty of the bond was in $90,000. Upon ñling a transcript of these proceedings in the county court of Fayette county, Tennessee, he was, by an order of that court, permitted to remove the property of his wards to Mississippi, that being then, as recited in the order, the place of their residence.

In • December, 1861, Glover made a settlement of his accounts in the county court, by which he was brought in debt a balance of $14,408 72 to his ward, Mary W. Shaw. At the July term, 1868, the guardian propounded a final settlement of his accounts with Mary W. Shaw, then the wife of J. T. Jefferson. In the first item he charges himself with $14,408 72, the amount due his ward, as per last settlement, 1st January, 1861. Pending the trial of exceptions which had been filed by Jefferson and wife, the guardian moved to strike this item from his account, which motion was sustained, and that forms the matter of the first assignment of error.

We are fully committed, as urged by the counsel for appellee, to the principle that an administrator, executor or guardian is confined, in the performance of fiduciary duties, to the jurisdiction of the forum which confers the office, and that, by virtue of an appointment in this state, no right is granted to go beyond its limits, and interfere with assets or property in another state. Riley v. Moseley, Admr., 44 Miss. 37; Anderson v. Gregg et al., ib. 170. If, however, the executor or administrator has reduced the property here to possession, he may follow it and recover it in another state, grounding his right there upon his possession. Perhaps it may be otherwise with a guardian who does not, as the executor or administrator, take the title. Grist v. Forehurd, 36 Miss. 761. But does that principle have application here? When Glover removed to this state, he was the personal debtor of his Ward. When he came, it may, with propriety, be said that he brought with him the duty and obligation to pay. It does not differ from the case of his loaning money in Tennessee, while guardian there, to a person who afterward removed to Bolivar county in this state. It would hardly be contended that, upon his appointment here, he would not be responsible, in the probate court, to his ward for proper and faithful conduct in respect to the debt. If, through his negligence, it was lost, by insolvency or otherwise, he would thereby make himself liable. Bell v. Suddith, 2 Smedes & Marsh. 533, is to the point that, if Grlover had never qualified as guardian, he could he held to account only in a court of equity, but if he qualified, the remedy would be in the probate court.

In Martin v. Stephens, 30 Miss. 160, a guardian, appointed here, collected money in South Carolina. It was held, that, when proceeded against in the probate courts, neither he nor his representatives could make the objection that the fund was collected out of the state.

It appears by the transcripts from Tennessee, that Grlover had made settlements in the county court, in which he charged himself with money received from all sources, and also interest on the balances from year to year. Upon the production of copies of his bond, and letters to the county court of Tennessee, he was authorized to remove the property of his wards to this state. In December, 1871, he made a settlement of his accounts in the county court, by which he was brought in debt a sum of $14,408. He did not claim that the money was out on loan, that it had been invested in any form. From charging himself with interest, it is manifest that he was himself using the money and was personally the debtor.

He returned no schedule of property, nor did he propose a settlement, except the one in this record, in 1868. There was testimony, delivered by Grlover himself, to the effect that he did not keep and administer separately the funds of his ward, he mixed them and used them indiscriminately with his own. Some he loaned out in Tennessee, before his removal to this state, on notes payable to him as guardian ; some was invested here.

The Code of Tennessee, art. 2513, authorizes the guardian to loan surplus money upon bond, with good and sufficient sureties, to be approved by the county court “at its next session.” Evidently the guardian did not deal with the funds according to this statute. In his testimony, he admits that he dealt with it as with his own property, and thereby made himself responsible as personal debtor. The provisions of tlie Code of Tennessee, immediately following the article quoted, relieves the guardian from personal liability, if he has put out the money in bond and security approved by the court, although the debt may turn out insolvent, if the loss is not imputable to his negligence or fault. Head, Admr., v. Whitehead, 41 Miss. 405, as to the management of the fund, is very similar to this case; there it was impossible to distinguish the estate from the fiduciary’ s own means, and he was held personally responsible. If the guardian had stated an annual account, charging himself with the money, surely he would not be heard on final settlement with his ward, on the facts deposed to by him, to dispute its correctness. The final account, as offered to the court, admitted the indebtedness. It is a solemn confession that he owed it as a personal debt. Nor did he propose to shift his ground, until claim was made for interest and additional hire for slaves. If it be true that the wards were minors in 1865, when the guardian turned over notes to the amount of $33,060, out of which to pay his wards, that arrangement would not be obligatory upon them. And although they might repudiate any credits realized by them from that source during their painority, yet any money received by them from these notes after attaining majority or after marriage, would be a discharge pro tanto of any balance due from the guardian. The depositions of Pulliam, the attorney for collection, proves that sundry payments, proceeds of this paper, were made to the wards respectively, in 1866, 1867, 1868, both before and after their marriage.

Is the guardian responsible for interest? He cannot be required to pay interest on balances on his accounts, unless he has consented to take the same at interest, or has loaned out the money at interest, with consent of the court, or used it in his own business or otherwise made profit. Crump v. Gavock et ux., 40 Miss. 768. It was proper to charge the guardian with interest, deducting from the debt, each year, what the accounts show were expended for maintenance and education, not, however, to be so computed as to make annual rests and thereby compound the interest. The guardian. was rightfully chargeable with the hire of the slaves for the years 1861 and 1862, but not for the years 1863 and 1864.

These embrace all the objections made by the assignment of errors.

Judgment reversed and cause remanded for further proceedings in accordance with this opinion,