Maxwell v. Harkleroad

77 Miss. 456 | Miss. | 1899

Whitfield, C. J'.,

delivered the opinion of the court.

The former opinion delivered in this case we think should be revised in one respect, and-that’is-this:

Whenever any guardian has wholly collected and wholly disbursed moneys, arising from personalty or rent of real estate (we do not deal here with a case of sale of realty in any proper case), the aggregate sum so collected and disbursed constitutes, as to that sum, a part of the estate finally settled. There is no further act to be done by him, or any other guardian, as to that sum. As to that “amount of the estate” he has discharged a guardian’s whole duty, and should receive a guardian’s whole compensation, to wit, ten per centum, on such amount.

It is shown by the record that the sums on which Maxwell was allowed commissions originally in his final account were wholly collected and wholly disbursed by him. He should, therefore, be allowed ten per centum on such amount, since, quoad hoc, he has finally settled the estate.

As well put by counsel for appellant: “The central idea is that if the guardian receives money of the estate and disburses it, if he does not receive it from any former guardian, and it is therefore free from any claim of any former guardian to any commissions upon it, and if he disburses it so that it is not paid over to any succeeding guardian, and therefore no succeeding guardian has any right to a commission on it, it is a final settlement of that money as to him, within the contemplation of the statute; else, there would be no person who would be entitled, under any circumstances of trouble, to an allowance, as against that fund, in excess of five per centum.” When the case was here before it was presented on demurrer, furnishing another of many illustrations of the unsatisfactory nature of such defense, when a.ll the facts set up by answer would make clear the right decision. This guardian is entitled, as the facts now show, to the highest praise for exceptionally faithful and skillful management of this estate. He made the mistake of hot taking out ancillary letters in Arkansas. But all that he did was done in the utmost good faith, and has contributed materially to the enhancement of the value of a large landed estate, in a dilapidated condition when received by him.

We decline to decide the question as to the compensation for extra services, laid at $2,000, rendered by Maxwell as guardian, further than to say we do not think they are properly collectible in this proceeding. What he did was professed to be done as guardian. lie had no authority in that capacity to deal with Arkansas lands at all, under our statutes. Bor that purpose he should have obtained ancillary letters-there. This proceeding is strictly against him as guardian — against him and his sureties on his bond as guardian, and the cross bill presents a claim for services as guardian. In no proper view can the pleadings here be said to present a case, eitheir in the petition or in the cross bill, of an effort to recover by Maxwell as an individual, from the appellee, as an individual, value for services which, ex aequo et bono, he, Ilarkleroad, should pay because he could not take the property without paying for the services which had preserved and secured to him the property. That relief Maxwell may be entitled to in equity on pleadings framed in that view. But clearly here no such end was thought of at the outset, or is in the scope of any of the pleadings before us now. This is a guardianship proceeding pure and simple.

All costs in this and the lower court will be taxed against the appellee, and the decree reversed and cause remanded for an accounting on the principles of this opinion in construction of § 21S9 of code of 1892.

It is further, in justice to the learned Chancellor below, to be said that the decree rendered by him was induced by the opinion (formerly delivered by the vTritér hereof) of this court. It is not a duty merely, but a pleasure, to correct-error at the earliest moment. And we are glad of the opportunity to do this in this case, while -it is still pending undetermined before us.

So ordered.