Watts v. Hicks

Hart, J. On the 17th of July, 1914, Lizzie Hicks filed a petition in the probate court for the southern dis-triet of Logan County, Arkansas in which she represented that she was guardian for Frankie Hicks, a minor, and that said minor was the only heir at law of the estate of Frank Hicks, her deceased husband; that there was no personal property belonging to said estate and that the estate consisted only of a tract of land comprising about seventy acres. She asked for an order of sale for the benefit of the minor, alleging that the minor was in need of the proceeds of said land for the purpose of educating and maintaining her,, and reinvesting the surplus, if any. H. O. Hicks, grandfather of the minor, filed a remonstrance to the petition and objected, in behalf of the minor, to the sale of the land on the ground that it was not necessary and that such sale would be improvident. His reasons were set out in his remonstrance. It was shown to the probate court that Frank Hicks, father of the minor, died in Logan County, Arkansas, and at the time of his death owned a tract of land comprising about seventy acres; that his widow was appointed guardian of the minor child; that she was a school teacher and that about a year prior to the filing of the petition for the sale of the land moved to New Mexico and carried her child with her; that her husband died October 30, 1907; that at the time the application for the sale of the land was made the minor was about seven years old; that on June 4, 1914, Lizzie Hicks married a Mr. Watts in the State of New Mexico and resided in that State with him at the time she filed her petition for the sale of the real estate. The petition was sworn to before a notary public in that State on the 17th day of July, 1914, and was filed in the probate court on the 28th day of July, 1914. She gave her deposition to be used on the hearing before the probate court, and in that deposition testified that she had no special property in view for reinvestment and did not know what kind of property she intended to' invest in for the minor. iShe testified that it cost her about $8 per month to support the minor while she lived in Arkansas, -tat that the minor was then larger, required more clothes, was about to start to school, and that it would cost about $16 a month to support her in the future. On the part of the remonstrant it was shown that the land was situated near the town of Booneville, and was likely to greatly increase in value in the future; that about fifty acres of the land was under cultivation and rented for $150 a year’and that with proper care it could be rented for $200 a year; that, the taxes on the land were between twenty and thirty dollars; that the soil was fertile; and that the land was worth about $2,500. At the October term of the probate court the petition and remonstrance were heard by the court and an order of sale of the land was. made. H. 0. Hicks, grandfather of the minor, filed an affidavit for appeal to the circuit court. In the circuit court a motion was made by the petitioner to dismiss the appeal and the motion was overruled by the court. The circuit court heard the case on substantially the same state of facts as that proved in the probate court and denied the petition for the sale of the minor’s land. From the judgment rendered the petitioner, has duly prosecuted an appeal to this court. (1) It is insisted by counsel for the guardian of the minor that the grandfather of the minor was improperly allowed to become a party to the proceeding and to appeal from the judgment of the probate court ordering the land sold. Therefore, they insist that the circuit court erred in refusing to dismiss the appeal. We do not agree with them in this contention. It is true that in this State a proceeding by a guardian to obtain the sale of ¡his ward’s real estate is not an adversary proceeding and on that account the minor is not a necessary party and a guardian ad litem need not be appointed for him. (2) Section 3778 of Kirby’s Digest provides that no person other than a resident of this State shall be appointed a guardian, and if after his appointment any guardian removes from the State his appointment shall be revoked and proceedings bad as in other cases of revocation. While nnder the terms of the statute the letters of guardianship are not revoked by the removal of the guardian from the State, yet the fact 'of the removal of the guardian from the State is sufficient reason for severing the relation of guardian and ward and revoking the appointment. 21 Cyc. 55. (3) It appears from the record in this case that the guardian was a resident of the State of New Mexico. The probate court on its own motion, under the statute, should have proceeded to remove the guardian and to settle her accounts with the minor. It should not have made an order for the sale of the minor’s land upon the petition of the guardian who had left the State and was beyond the jurisdiction of the court. (4) Moreover, the testimony introduced by the grandfather in behalf of the minor tended to show that it was improvident to sell the lands of the minor; that the minor was young and did not require more than $8 a month for her support, and that the land was capable of being rented for $200 per annum; that the taxes amounted to only between $20 and $30; that the soil was very fertile; that the land was situated near a growing town and was likely to greatly increase in value in the near future. Under these circumstances it would not be for the 'best interests of the minor to 'sell the lands. But it is claimed by counsel for the guardian that the probate court had no authority to allow the grandfather to be made a party to the proceedings because, as we have already seen, the proceeding for the sale of the land was not an adversary action. They contend, therefore, that the appeal should have been, dismissed, (5) Infants, being persons (under disability, can not conduct their own legal proceedings, and the usual custom is for them to appear either by next friend or by guardian ad litem, the only difference between the functions to be performed by the next friend and the guardian ad litem, that the former prosecutes and the latter defends for the minor. In the case of Crow, Guardian, v. Reed, 38 Ark. 482, the minor filed exceptions to the current settlement of her guardian "with the probate court. She did not appear by next friend or special guardian. The court sustained her right to file the exceptions and in its opinion called attention to the fact that the probate judge should not wait to be moved to correct errors in accounts of guardians and said that otherwise the interest of minors might often be sacrificed by failure of vigilance on the part of near relatives or next friends. Thus it will be seen that the right of infants to form an issue as to the correctness of guardian’s accounts is recognized. (6) The right to appeal from the judgment confirming a settlement of a guardian was also recognized in the case of Nelson v. Cowling, 89 Ark. 334. By analogy,-we think the probate court, under the facts and circumstances adduced in the present case, might allow any near relative of the minor to become a party to the action for the purpose of protecting the interests of the minor. When the minor, by her next friend, was allowed to become a party to the proceeding this raised an issue, not only as to whether the court had the legal right to make the sale, but also the additional question as to whether such sale was advisable; and we are of the opinion that the probate court did not err in allowing the minor, by her next friend, to appear to make objections to the sale. (7-8) We have not copied the petition of the grandfather into the record on account of its length; but when the petition is read from its four comers it is evident that the grandfather appeared as next friend for the minor and not for his own interest. We are of the opinion that the minor had a right to appear by her next friend and object to the sale of her real estate and to appeal from an order of the probate court directing such sale to be made by the guardian. As already indicated, we are of the opinion that the remonstrance filed by the grandfather and objection made by him was as next friend for the minor and from the views we have expressed it follows that the circuit court did not err in refusing to dismiss the appeal; and that its judgment refusing to allow the sale of the minor’s real estate was correct. The judgment will he affirmed.