Moss v. Moose

Mehaeey, J. Mabel Kissire, 12 years of age, was struck by an automobile driven by Eugene Coxsey on December 3, 1928, in Morrilton, Arkansas. On December 14, Mrs. N. A. Kissire, mother of the child, was appointed guardian and curator of the person and estate of Mabel Kissire. On the same day a petition was filed by the guardian in the probate court for authority to settle the claim of the minor for the injuries received as a result of being struck by the automobile. The court, without hearing any evidence, but taking the statements of the attorney for the insurance company and the g'uardian, made an order authorizing the guardian, to settle the claim for damages for the sum of $200. The claim was thereupon settled by the guardian, and she executed a release as guardian and in her own right as mother. Mabel Kissire, a minor, was at the time when the petition was filed and the order made, in the hospital, seriously injured. ’ The petition of the guardian for authority to settle the claim and the order of the court were prepared in Little Rock by attorneys for the insurance company. The father and mother of Mabel Kissire were not living together at the time, were divorced, and the mother had custody of the child. The father objected to the settlement and refused to approve it. The attorney for the insurance company and Mrs. Kissire went to W. P. Strait’s office, an attorney at Morrilton, and he advised against the settlement at that time. Notwithstanding the advice of Mr. Strait and the objection of the father, the guardian and Mr. Wright, attorney for the insurance company, went to the probate court and represented to the court that the girl was not injured much and would soon be well. Mr. Wright presented the matter of settlement to the probate judge. No proof was taken and the probate judge knew nothing of the child’s condition, and it was represented to him 'by the insurance company’s attorney that the injuries were not serious. The probate judge said he did not think he read the petition, and made the order without hearing any evidence, but relying' on the statement of the attorney that the child’s injuries were not serious. After this Eugene Coxsey died, and A. J. Moss was appointed administrator of his estate. J. S. Moose was appointed curator of the estate of Mabel Kissire, and on November 2, 1929, filed a petition in the probate court asking that the order of settlement previously entered be set aside. The petition alleged that Mabel Kissire was seriously and permanently injured on December 3,1928, by the negligence of Eugene Coxsey in running his automobile upon, over and against her, and that, as a result of this, she, for a long period bf time, experienced intense physical pain and mental anguish; that one of her limbs were severely crushed and broken, that she was otherwise injured and wounded, and that she is permanently crippled; that said Coxsey carried casualty insurance in the sum of $5,000. The petition alleged that 11 days after her injuries, when she was still in the hospital and when large expenses were being incurred, agents and representatives of the insurance company, with said Eugene Coxsey, procured the appointment of Mrs. N. A. Kissire, mother of said child, as guardian, and that on said date, by fraud and intimidation and without the knowledge of Mrs. Kissire as to the nature of said transactions, they procured her signature to the petition to the probate court of Conway County asking for authority to settle all the rights of said minor for her injuries and damages for the sum of $200, representing to the court that her injuries were of minor importance and not serious, and thereby procuring an order authorizing said settlement. It was alleged that the representations were false and constituted a fraud upon the court, and that Mrs. N. A. Kissire, in fact, made no such petition to the court. The petition prayed that the cause be reopened, and said order set aside and annulled. The court took testimony and made an order stating in said order that it appeared that Coxsey carried casualty insurance in the sum of $5,000, and that the agent of said insurance company and Eugene S. Coxsey, by deceit and misrepresentations perpetrated on Mrs. Kissire, guardian, procured her signature to the petition, and that the insurance company and Coxsey procured the appointment of Mrs. Kissire as guardian, and it further appeared by the testimony of J. II. Keynolds, judge of the probate court at the time the original order was made, that a fraud was perpetrated upon him and the facts misrepresented, and that no proof was taken, and that it was further shown by proof that the child was seriously injured and permanently crippled, and that Mrs. Kissire understood that she was simply settling expenses. The court found in favor of the petitioner, set aside the order of the court authorizing' settlement for $200, and from said judgment of the probate court the administrator of the estate of Coxsey appealed to the circuit court. The case was tried in the circuit court by the court sitting as a .jury, and judgment was entered sustaining the order of the probate court in setting aside the order for settlement. The case is here on appeal. Much evidence was taken on the question of whether the order of the probate court authorizing a settlement of the damages for $200 was a fraud practiced on the court by the successful party. We deem it unnecessary to set out the testimony, for the reason that the probate court had no jurisdiction to settle the matter, and its judgment was therefore void, whether any fraud was practiced or not. Probate courts have no common-law jurisdiction. The nature, extent, and exercise of the jurisdiction of probate courts depend on the terms of the constitutional and statutory provision, and they cannot exercise any powers other than those which have been expressly conferred upon them, or which are necessarily implied from those conferred. The constitution provides: “The judge of the county court shall be the judge of the court of probate, and have such exclusive original jurisdiction in matters relative to the probate of wills, the estates of deceased persons, executors, administrators, guardians and persons of unsound mind and their estates as is now vested in the circuit court, or may be hereafter prescribed by law. The regular terms of the court of probate shall be held at the times that may hereafter be presBribed by law.” Section 34, article 7 of the Constitution. The statute provides: “The court of probate shall have original jurisdiction in the following cases: “ ‘First. In all matters relating to the probate of wills and testaments, the estate of deceased persons, executors, administrators, guardians, and persons of unsound mind and their estates. “ ‘Second. In the settlement and allowance of accounts of executors, administrators and guardians. “ ‘Third. To hear and determine all controversies respecting last wills and testaments, rights of executor-ship, administration or guardianship. “ ‘Fourth. To issue process and to cause to come before such court all persons whom they may deem it necessary to examine, whether parties, or witnesses, or who as executors, administrators, or guardians, or otherwise shall be interested or in any wise accountable for any lands, tenements, goods, chattels, moneys or effects belonging to any minor, orphan, or person of unsound mind, or to the estate of any deceased person’.” Section 2256, Crawford & Moses’ Digest. In speaking of the powers granted probate courts, this court said: “The most important interests,' the guardianship of widows, children and estates, are committed to their superintending care. Some possibly are dishonest, many are not wise or discriminating. Taking into account the magnitude of the property interests which they have in charge, these courts should be required to proceed in exact conformity to law, instead of being panoplied by the presumptions which attend the exercise of superior jurisdictions by other courts.” Apel v. Kelsey, 52 Ark. 341, 12 S. W. 703, 20 Am. St. Rep. 183. It has been repeatedly held that it was not the purpose of- the constitutional and statutory provisions to invest the probate court with jurisdiction of contested rights and matters of litigation as to the title of property between the executor or administrator and others. Fancher v. Kenner, 110 Ark. 117, 161 S. W. 166; Moss v. Sandefur, 15 Ark. 381; Hart v. Wimberly, 173 Ark. 1083, 296 S. W. 39. “It is well to remember that these tribunals have only such specific and limited jurisdiction as is conferred upon them by the Constitution and statutes, and can only exercise the powers expressly granted and such as are necessarily incident thereto.” Lewis v. Rutherford, 71 Ark. 218, 72 S. W. 373; Union & Mercantile Trust Co. v. Hudson, 147 Ark. 7, 227 S. W. 1; Paget v. Brogan, 67 Ark. 522, 55 S. W. 938; Shane v. Dickson, 111 Ark. 353, 163 S. W. 1140. The original judgment of the probate court was void because the court had no jurisdiction, and it is unnecessary to determine whether fraud was practiced on the court in procuring the judgment. The judgment of the circuit court is affirmed.