18 Tex. 700 | Tex. | 1857
On or about the 14th December, 1854, James H. Spillman departed this life, having, a short time previous to his death, executed his last will and testament, to the effect as follows : I want my children brought to Galveston ; Dr. Stone to take charge of them as guardian for them ; sell the perishable property ; rent out the house ; hire out the negroes, &c ; my son Charles I want Mrs. Stone to take charge of, and keep him with her until he is old enough to put to school as a child of her own.
(Signed,) J. H. SPILLMAN.
Attest: John Burgess,
J. H. Sxlvester,
Sarah A. Stone.
December 14th, 1854.
In January, 1855, Dr. Stone filed in the County Court his
The first cause, brought up at the last Term of this Court, was decided at that Term, and a glance at the Opinion then pronounced, will show that the only question involved, or now insisted upon, in this record, was then, in effect, considered and definitively adjudged. The judgment in the case now in
If the intermeddling was not of such character as to disqualify Stone for the appointment of administrator, or rather from receiving letters testamentary, certainly they could operate to no such disqualification as to exclude him from being appointed as guardian. It must be recollected that Stone does not derive his authority to administer the estate or act as guardian for the minors, solely from the grant of power by the
Dr. Stone had been advised by his legal counsel to take possession of the effects, and pursue the course touching them, requested by the deceased, and that when the will would be probated all would be right; and when he sold the cattle he informed the purchaser that he had no doubt the Court, when informed of the facts, would ratify the sale. It does not appear from the evidence, that Stone intended to embezzle the property, or to act in contempt and defiance of the authority of the Court, but only to make such disposition, in conformity with the directions of the will, as would be most beneficial to the estate. And if the act of sale was really con servative, if the estate would have suffered loss, had the sale not then been made, certainly the sale was no ground on which letters testamentary could have been refused, and especially when it is considered that, where a sale is directed by will, no
Had there been no will, had the power of administration on the estate been derived solely from the Probate Court, it is believed that the mere fact of intermeddling with the estate, before the grant of administration would not, of itself, be suEcient ground for the refusal of letters to a person otherwise entitled. At least a grant, if made, could not be objected to on the ground that the administrator had been acting previously as executor in his own wrotig. (1 Williams on Ex’ors. 221; 15 Mass. 322, 325; 8 Johns. 126.)
But it may be said that though intermeddling with an estate is not good ground for refusing letters testamentary to an executor, yet the rule does not hold as to letters to testamentary guardians, who are in effect prohibited from interfering with the estate of the minors until they qualify and receive letters of guardianship. (Hart. Dig. Art. 1572.) What is the intention of this provision, requiring bond and security from a testamentary guardian ? Clearly for the benefit of the minor, and to supply a defect in the provisions of the Statute of Charles the Second, which first introduced testamentary guardians in the Common Law system, who, under that Statute, were not required to give bond and security as a condition precedent to their assumption of guardianship. There is no penalty attached to the interference, and certainly the Court is not, by construction, authorized to attach a consequence which would
The painful, earnest solicitude of the father, in this case, that Stone should be the guardian of his children, impresses itself strongly upon the mind, as well from the terms of the will itself, as by his wishes expressed to persons around him in his last illness. It appears also from an informal will executed some months previous to that time. Can these wishes, these injunctions be disregarded by a Court, simply because this guardian, this second parent, to whom was given the control of the property, the education, and, in a great measure, of the morals and habits of these children, did not, before entering on the discharge of his duties, comply with all the formalities requisite to give sanction and legal power to . his appointment ? The policy of the law authorizing fathers to appoint guardians for their children, the solemn trust bequeathed by the decedent to his surviving friend, forbid a construction which would defeat such policy, and render vain and ineffectual the hopes and the deliberate final choice of a father in his last illness. A testamentary guardian does not receive the appointment for his own benefit, but for that of the minor. If, like the guardian in chivalry, he received the profits of the estate for his own use, there would be some reason for his removal for slight defaults. But not so where the appointment is for the benefit of the minor, and where the object most cherished by the father, in making such appointment, may be defeated by his removal, or by refusal to issue him the necessary letters. This power, although operating to defeat the appointment, may be exercised by the Court in proper cases, but with caution and delicacy, and only where it is expressly authorized, or clearly and plainly implied, as where there has been waste, embezzlement, &c.
The intermeddling acts, as they are called, of Stone, ought not, on another ground, to be set up against the grant of the guardianship. Under the will he is both executor and guard
We believe there was error in the decree of the County Coprt, which overruled the application of Enos Stone, for letters of guardianship of the persons and estates of the minors, John B. Spillman and Charles N. Spillman, the children of the testator,'James H. Spillman ; and that there was error in the judgment of the District Court, which affirmed the judgment of the County Court; and both judgments are reversed, and this cause is remanded to the District Court, with instructions to enter a judgment sustaining the application of the said Enos Stone for letters of guardianship over the persons and estate of the said minors, in conformity with the opinion- of this Court, and to certify the said judgment to the County Court for the observance of that Court.
Reversed and remanded.