125 S.W. 965 | Tex. App. | 1910
Appellee Van V. Nicholson for himself and as next friend for Albert, his brother, brought this suit in the Probate Court of Lamar County in the nature of a bill of review under art. 2799, Rev. Stats., to revise and correct the action of the *359 court upon final settlement of appellant, the guardian of their persons and estate. The suit was filed August 5, 1908. Van V. Nicholson became twenty-one years old on August 17, 1906, and Albert was under twenty-one years at the time of the suit and trial. The bill alleged as matters for review and restatement, that the guardian failed to return and inventory all of the personalty that he took possession of, naming it, and failed to account for it, and that he sold certain personal property without an order of court authorizing it, and that his account was erroneous and illegal as containing items stated as paid which were not paid, failing to account for certain items of cash shown by the inventory, and containing charges for maintenance and board which were wrong and unauthorized, and excessive and illegal commissions to himself, and in failing to account for certain rents and revenues. The prayer was to have the decrees and orders theretofore approved by the court set aside, and the guardian's account corrected and restated. Appellant answered by demurrer and special exceptions, and generally. The County Court overruled the demurrer and exceptions, set aside the order discharging appellant and approving his final account, restated the various accounts and charged him with $714.40. On appeal the District Court made like orders, charging appellant with $1752.49.
Appellant was appointed guardian of the person and estate of Van V., Emma, and Albert Nicholson, by the County Court of Lamar County on September 7, 1893, and he qualified as such. The estate consisted of land in Lamar and Collin Counties, personal property, some money, and notes and accounts. The land in Lamar County was sold under proper order of the court, and collection made of the notes and accounts as far as possible. The guardian made annual reports during a part of the time the proceeding was pending; and in April, 1900, filed his final report and resignation. His final report showed he had invested some money in land in Collin County under order of the court, and that the estate then consisted of land and certain household and kitchen furniture, and that his wards were living with their uncle in Navarro County. This uncle applied for letters and was appointed guardian by the County Court of Navarro County. On December 21, 1900, the resignation of appellant was accepted, and by an order of that date his final account was approved and he was discharged and directed to turn over the estates to the uncle as guardian in Navarro County.
After Stating the Case. — The appellant, by proper assignments of error, challenges the power and jurisdiction of the Probate Court to entertain a bill of review in guardianship proceedings after final discharge of the guardian, and the sufficiency of the grounds alleged for review in the bill. If article 2799, Rev. Stats., should be construed, as contended for by appellant, as applying to orders pending the guardianship and before entry of judgment of final discharge of the guardian by the court, then such ruling would be decisive of the appeal, and consideration of the other questions would be unnecessary. The precise facts of the case are that the guardian resigned as guardian, and rendered an account of the condition of the estate and of his guardianship to the court, which was by the court accepted *360
and approved by an order. The discharge of appellant was not on account of the wards becoming of legal age. The appellees were minors at the time. The statute provides that where a guardian wishes to resign he shall present his application in writing to that effect to the court and accompany such application with a full and complete account of the condition of the estate and of his guardianship. Article 2692, Rev. Stats. Upon the hearing of such application and account, if it appear that such guardian has accounted for all the estate according to law, the court shall enter an order upon the minutes that he deliver the estate remaining in his possession, if any there be, to some person who shall have been or may be appointed and qualified as guardian in his place, and upon compliance with such order such guardian shall be permitted to resign his trust and be discharged. Article 2695, Rev. Stats. It is provided by art. 2799, Rev. Stats., that any person interested may, by a bill of review filed in the court in which the proceedings were had, have any decision, order or judgment rendered by such court or the judge thereof, revised and corrected on showing error therein. The instant proceeding is by a party in interest, and was in the court in which the guardianship proceedings were had, and no question in that respect can be or is urged. The appellees are protected in the case against limitation by their minority, and hence the lapse of several years after the order discharging the guardian before filing the bill of review is not a bar. An order of approval by the court of an account and discharge of the guardian is clearly within the provision of the statute an "order or judgment rendered by such court." The question is narrowed to the power of the court to entertain the bill after entry of final order of discharge of the guardian. The appellant contends that the court has no such power, and that to so construe the article would render it unconstitutional. Several authorities are cited and relied on in support of his contention as hereafter discussed. The Probate Court having the power conferred on it by the Constitution to appoint guardians of minors, settle their accounts and transact all business appertaining to minors, and that jurisdiction being invoked by appointment of a guardian of a minor, and having the power by statute on proper application of a party interested to correct by bill of review orders or judgments rendered by it in such proceedings, and a final settlement of a guardian being an order or judgment authorized to be rendered by such court, it follows, we think, that a proper bill of review could be entertained by such court, as within its power, to revise a final settlement of a guardian after discharge of the guardian. The jurisdictional elements are the fact of a guardianship proceeding having been in that court, and the order or judgment sought to be reviewed having been entered by the court, and the filing of the bill by the proper person, and the notice to the guardian. The statute does not prescribe the time in which the court shall or shall not exercise the power. It has been ruled, however, that general limitation statutes would apply to the right of applicants to file the bill. DeCordova v. Rogers,
Having determined that the court had the power to entertain the bill of review, we next determine the errors assigned on the sufficiency of the pleading.
It is contended by appellant that the allegations in the bill are insufficient to authorize a review. Except as to the two items below, the bill attacked the accounts of the guardian both for errors of law apparent on the accounts, and upon a state of facts the effect of which was to charge fraudulent conduct. We think the bill sufficient. Miller v. Miller, 21 Texas Civ. App. 383[
The appellee attacked in his bill certain items on the debit side of the first annual account, which are challenged by appellant. The court found that the face of the account showed a debit of $256.30 for maintenance and support of the minors, and $223.15 clear income received. Because no order of the court was in evidence allowing any expenditure of the corpus for such purpose, the court disallowed as a debit to the guardian on the account the difference. Appellant claims this was error. The findings are sustained by the report. In this state of the account and proof by appellees, it devolved upon the guardian to justify his expenditure by proof that an order of the court was made authorizing the use of the corpus. Jones v. Parker,
As the only judgment which could have been rendered by the Probate Court was to decree the state of their guardian's account with all of his wards at the time of his final account and resignation, it was not error, we think, to restate the account as to all of the wards, although one of the wards was not a party to the suit. Limitation, it appears, had barred the remedy of one of the wards, who was not a party to the suit. This disposes of all the assignments presented except the second assignment, which is overruled.
For the errors discussed the judgment was ordered modified, and as modified to then be affirmed with costs of appeal against appellees.
Reformed and affirmed.
Writ of error refused.