28 Ind. App. 330 | Ind. Ct. App. | 1902
The questions for decision upon this appeal arise upon the following facts, specially found by the court: On the 29th day of November, 1890, appellant was appointed guardian of the person and property of John Laughery, an adult person of unsound mind, and on December 12, 1890, filed his inventory showing $1,874.20 belonging to the ward. He afterwards received different sums, making the total amount which came into his hands as guardian, $3,778.21. On November 19, 1898, Laughery
The regularity of the appointment of appellee as administrator is not here questioned. As such administrator he had tire right, and it was his duty, to file exceptions to the guardian’s final report if he had reason to believe that the assets of the estate were not properly accounted for by the guardian. We must presume, in the absence of some showing, that there was sufficient grounds upon which to act when the court appointed the administrator. The appointment was made at the request of the two classes of persons interested in the property, the creditors and heirs.
The statute, §2721 Burns 1901, 2551 Horner 1901, provides that the same duties are required of, and the same powers granted to, guardians of persons of unsound mind as are required of and granted to guardians of minors, so far as the same may he applicable. That provision of the statute relating to the guardianship of minors which requires the guardian to render to the proper court an account of his receipts and expenditures at least once in every two years,, •and failing so to do shall receive no allowance for services, ■must be held applicable to guardians of persons of unsound mind.
The exceptions filed by appellee to the final settlement
Under the statute above quoted, the court had no author- - ity, upon the facts stated, to allow the guardian anything for services. One part of the finding recognizes the force of this statute, but the amount actually allowed is designated by the finding as for “sendees.” In such a ease if the guardian, in any current report, takes credit for any allowance for services contrary to the provisions of the statute, such credit should be charged to the guardian as assets of the ward’s estate. There are valid reasons for the existence of such a provision. If it may be declared not to apply to the facts here stated, it may be held not to apply in any., case, and thus the statute be abrogated. There is error in the record but none of which appellant can complain. See, State ex rel. v. Parrish, 1 Ind. App. 441.
Appellee has assigned cross-errors upon the conclusion of law and upon overruling his motion for a new trial. The latter is waived, because not discussed, besides, no attempt has been made to bring the evidence into the record. The former is not available, because it does not appear that at the time the conclusion of law was stated appellee took any exception. A statement in tire transcript that it was agreed that appellant should make part of the record the exception by appellee to the conclusion of law can not create an exception which was not at the time, taken. The record shows that when the conclusion of law was stated the “exceptors to the report of the guardian then moved the court for judgment in their favor,” and judgment was rendered on the conclusion of law.
As no error was committed against appellant, and as no question is presented by the cross-errors assigned, the judgment is affirmed.