Hudson v. Newton

Wood, J., (after stating the facts.) First. It was not shown that the guardian derived any income. from, the ward’s estate. The actual relation of parent and child existed between appellant and appellee during the time that appellant is charged for board and clothing. It is not contended by appellee that the amounts for which she claims credit were expended under the orders of the probate court. She does not allege or show that she first obtained an order of the probate court. Under section 3792 of Kirby’s Digest, the probate court may direct the expenditure of a sum in excess of the income of the ward’s estate for maintenance and education, but, without such order of the probate court first obtained, the guardian has no authority to invade the principal of the ward’s estate. The question of the expenditure for maintenance and education presented by this record is ruled by the decision of this court in Campbell v. Clark, 63 Ark. 450. where the above statute is construed, and the holding is adverse to the contention of appellee here. Second. The testimony of appellant shows that he did not object to his mother’s settlement on the ground that he was not liable therefor on account of nonage at the time the necessaries were furnished him. The court was warranted in reaching the conclusion from the evidencé that appellee’s account was true and correct. That being the case, the testimony of appellant justified the court in rendering judgment against him as by consent. His testimony was tantamount to saying to the court, ”1 am willing to the judgment, provided the account is correct.” The court found that the account was correct, and entered judgment accordingly .against appellant. The judgment was in accord with the position taken by appellant in the circuit court, as shown by his own testimony, and he cannot be allowed to take a different position here. Affirmed. Hiuu, C. J., and Battue, J., dissenting.