126 Ark. 579 | Ark. | 1917
Marion Thomas became the guardian of his son, the appellant, on the first day of April, 1905. W. D. Polk and H. H. Williams signed the guardian’s bond as sureties. Ivan Thomas, the appellant, was eleven years of age at the time, and his entire estate consisted of an undivided interest in the S. W. ^ of the N. W. Sec. 10, Twp. 21, R. 4, E. in Clay county, Arkansas. On application of the guardian the land was sold on November 27, 1905, on three months’ credit. The portion of purchase money due appellant amounted to $203.35. On the 14th day of February, 1906, the guardian filed his first and final settlement, in which he took credit for $160 by voucher No. 3, representing an allowance made by the probate court to the guardian on the 14th day of February, 1906, for board, clothing and doctor’s bills for the years 1902, 1903, 1904 and 1905. On the same date, the probate judge restated the account filed, and found the guardian owed appellant $8.21, and directed that the guardian and his bondsmen be discharged upon the payment of said sum into court. On the 25th day of April following, the guardian paid said amount to the clerk of the court. On July 23, 1906, the guardian presented a claim to the court for clothes and board in the sum of $8.21 from the fourth Monday of April to the fourth Monday in July, which account was allowed and ordered paid. -The clerk then paid said sum to the guardian.
Appellant brought this suit in equity against his guardian, Marion Thomas, and his bondsmen, H. H. Williams and W. D. Polk, to falsify and surcharge the account, alleging “that the guardian failed to charge himself with interest on the sum collected from the sale of said real estate from the date of sale until his final settlement; that he took credit for $160 for board and clothing and doctor’s bills and credit for $8.21 for board and clothing; that the item of $160 was greatly in excess of. the income of the estate; that said sum was nqver paid out or expended for appellant’s benefit;, and that said guardian never intended to make any charge on these items at the time they were furnished; that during the years 1902-3-4 and 5 the appellant was living with his guardian, who was his father, as a member of his family, receiving support from said defendant and rendering services required by parents of their children, which services so rendered by appellant were sufficient compensation for his board, clothes, etc.; that these facts were fraudulently concealed from the probate court at the time he presented his claim for same.” An answer was filed denying the material issues, which answer contained a demurrer to the complaint. The cause was heard on the pleadings and depositions. The chancellor dismissed the bill and this cause is here fin appeal.
The undisputed evidence in this case shows that the guardian collected $203.35 from the estate of appellant and that he took credit for $160 for board, clothing, etc., which he had not expended for appellant out of the money so collected. This credit for board and clothing covered a period almost entirely prior to his appointment as guardian for his son. At that time appellant was living at home with his father in the relationship of parent and child; the father had no intention whatever of charging his son any board for the years 1902, 1903, 1904 and 1905. The charge was clearly an afterthought and had the effect of absorbing • the entire estate of the boy. This could not be done without first obtaining an order from the probate court. It was clearly a fraud in the law which courts of chancery will recognize.
It is also contended that the bondsmen are not responsible for $8.21 charged by the guardian, Marion Thomas, for board and clothing from the first Monday in April, 1906, to the first Monday in July, 1906, for the reason that this credit was obtained-by the guardian after he and his bondsmen were discharged. They are correct in this contention.
On final settlement, it appeared that the guardian was indebted to his ward, the appellant herein, in the sum of $8.21, which amount was paid into the court. Without authority of law he obtained this amount from the clerk of the court and, of course, is indebted to appellant in that sum in addition to the sum of $160 for which he wrongfully obtained a credit. His bondsmen, two of the appellees herein, are responsible jointly with him for the item of $160. The decree herein must be reversed, and a decree will be entered here against the appellees, Marion Thomas, W. D. Polk and W. W. Williams, for $160 with interest at the rate of 6% per annum from the 14th day of February 1906, until paid, together with all costs,- and a decree will be rendered against the guardian, Marion Thomas, for $8.21, together with interest thereon at the rate of 6% per annum from February 14, 1906, until paid.