Nelson v. Cowling

Hart, J., (after stating the facts.) The appeal in this case raises the question of whether the nine previous settlements are involved in this proceeding, an appeal not having been taken from the judgments of the probate court confirming them within 12 months after each of them was rendered. Section 5075, Kirby’s Digest, reads as follows: “If any person entitled to bring any action, under any law of this State, be, at the time of the accrual of the cause of action, under 21 years of age, or insane, or imprisoned beyond the limits-of the State, such person shall be at liberty to bring such action within three years next after full age, or such disability may be removed.” Counsel for appellee insists that this section takes this case out of the requirements of section 1348 of Kirby’s Digest, which provides that all appeals from judgments of the probate courts shall be taken within 12 months from the rendition thereof. Their contention is that an appeal from the judgment of confirmation of a probate settlement constitutes the bringing of an action within the meaning of section 5075 of the Digest. We do not think so. Section 34, art. 7, of the Constitution vests the probate court with exclusive original jurisdiction relative to the estates of deceased persons, executors, administrators, guardians and persons of unsound mind. The section following provides that “appeals may be taken from judgments and orders of .the probate court to the circuit court under- such regulations and restrictions as may be prescribed by law.” The Legislature restricted the appeals to a period of time within 12 months after the judgment was rendered. We think it clearly deducible from- the sections of the Constitution above quoted that its framers contemplated that an existing controversy should be an essential requisite to appellate jurisdiction, and that an appeal should be but a continuation of the suit below, and not the bringing of a new action. In the case of Phelps v. Buck, 40 Ark. 220, it was held that the confirmed settlements of guardians in the probate court can not afterwards be disturbed except in chancery for fraud or some other recognized ground of chancery jurisdiction. In the absence of some recognized ground of chancery jurisdiction, the judgment of confirmation of the probate court is conclusive of all matters embraced in the settlement; for they may be said -to be adjudicated. But the judgment is not conclusive as to matters omitted from the account; for these matters have not been examined or considered by the court, ■ and that which has not been tried cannot be said to be adjudicated. Therefore they may be surcharged in subsequent settlements. Woerner on the Law of Administration, vol. 2, pages 1126 and 1128; Hankins v. Layne, 48 Ark. 544. The record does not disclose that any items were left out of the previous settlements which should have been included therein; but it affirmatively shows that all the items relative to these settlements which are now complained of were embraced therein, and that they were considered by the probate court before the accounts were confirmed. We think, therefore, it is clearly deducible from the authorities supra that the judgments confirming the previous settlements, whether erroneous or not, are now res judicatae, for the reason that no appeal was taken therefrom within the period of 12 months next from the rendition thereof. This brings us to a consideration of the 10th settlement. No exception is made to the action of the probate court in allowing interest on the amount claimed to be' due the estate of the former guardian; but exceptions were not necessary. It was said in the case of Crow v. Reed, 38 Ark. 482: “The probate judge should not wait to be moved to correct errors, in accounts of such fiduciaries as he is required to supervise, but should refuse to confirm any settlement obviously improper. Otherwise the interests of minors might often be sacrificed by failure of vigilance on the part of near relatives and next friends.” In the present case the probate court removed J, J. Nelson from the guardianship in 1903, and appointed S. C. Cowling guardian in his stead. Section 4044 of Kirby’s Digest provides that whenever any guardian of an insane person shall be removed from his trust he shall immediately settle his accounts, and ■render to his successor the estate and effects of his ward. The record discloses that Nelson not only failed to settle his accounts, but attempted to collect the rents and to interfere with his successor in the discharge of his duties. Nelson died sometime after his removal from the guardianship, but the duty of accounting was a continuing one and devolved upon his administrator. The account in question was filed by his administrator on the 12th day of October, 1907, in response to a citation by the court. These acts and omissions constituted a gross neglect of duty. To allow a trustee interest under such circumstances would be to offer a premium for official negligence. We are of the opinion that the conduct of the trustee has not been such as to entitle him to the 'favorable consideration of the court in this respect, and the item of interest on the balance due him by the insane person’s estate should not have been allowed. Polis v. Tice, 28 N. J. Eq. 432; In the matter of Henry P. Hall, 19 Ill. App. 295. The exceptions filed to the 10th account allege that Nelson collected the sum of $26.50 after his removal from the guardianship, for which he failed to account. We find that the proof in the record does not sustain this exception. The circuit court also found that Nelson’s account should be charged with the sum of $56.25, which had been deposited in the Howard County Bank, and was lost on account of the failure of the bank. After the order of the probate court removing Nelson from the guardianship, both he and Cowling, his successor in office, endeavored to collect the rent from the insane person’s farm, each claiming to have authority to do so. Nelson claimed authority by virtue of his appeal from the order of removal, and Cowling, by virtue of his appointment as guardian to succeed Nelson. Smith, the tenant, was in doubt who was entitled to receive the rent. Finally, by agreement of Nelson and Cowling, and by the direction of the probate judge, .the money was deposited in the Howard County Bank to .await the. result of the contest. The deposit having been made in perfect good faith under directions from the probate judge, we do not think that Nelson should be charged with the loss of it, occasioned by the subsequent insolvency proceedings against the bank. As a result of our determination, it is ordered that the judgment be reversed with directions to confirm the 10th settlement, filed October 12, 1907, except as to the item of interest, $186.33, which is disallowed.