Diffie v. Anderson

SMITH, J., (after stating the facts). We think the court should not have dismissed the complaint but, on the contrary, should have surcharged the account and should have held that a fraud in law had been committed in the allowance of the charge for board. The facts are substantially identical with those of the case of Thomas v. Thomas, 126 Ark. 579. The court there applied Section 3792 of Kirby’s Digest, which provides that the guardian shall not be allowed more than the clear income of the estate for the maintenance and education of the ward unless the expenditure is directed by the probate court, and we there approved the construction given this statute in the case of Campbell v. Clark, 63 Ark. 450, where it was said: “The language of this statute could not well be made stronger than it is, and we are of the opinion that it was intended to be, and is, mandatory. This statute, in our opinion, takes from the probate court the discretion to approve the expenditures of a guardian for the maintenance and education of Ms ward, so far as they exceed the income of the ward’s estate, unless such expenditures have been made under the direction of the court. ’ ’ It was also said in that case that if the guardian obtained credits in his final settlement for sums which he had not expended for the benefit of his ward, it would be such a fraud as would warrant a court of chancery in restating and correcting such settlement. In the instant case Anderson filed no claim for board with his wife while she was guardian and that entire charge made accrued before he became the guardian. Indeed, the claim was not made until more than two years after his qualification as guardian, and when made it had the effect of absorbing the estate of both the boy and the girl except their interest in the lots the title to which, as stated, was outstanding in the name of their mother. These facts make peculiarly applicable the language of this court in the case of Thomas v. Thomas, supra, where, in the application of the doctrine of the case of Campbell v. Clark to the facts of the Thomas case, we said: ‘ ‘ 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 Ms son. At that time appellant was living at home with Ms 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. ’ ’ So far as the wards are concerned we are of the opinion that both sets of the sureties are liable for the sum with which the guardian charged himself in his settlement. No day of court intervened between December 12th. — when the court adjourned until court in course— January 19th — when the ensuing term was regularly opened — and no order of the court could have been made on January 5th releasing the sureties on the first bond from liability. A similar question was presented in the recent case of State ex rel. Hall v. Canal Construction Co., 134 Ark. 447, 203 S. W. 704. On the 5th day of October the county-court of Poinsett County made an order adjourning until October 28th. The judge convened the court on October 26th and made an order the validity of which became of controlling importance. In holding the order of October 26th void we said: “When the court adjourned to a day certain all persons interested had the right to remain away until the day fixed by the court to convene again, and the judge could not before that day arrived convene the court and proceed with the dispatch of the cases and other matters pending therein. The fact that by a statute in this State courts must be held at fixed times and places raises the implication that courts cannot assume a vagrant character and hold their sessions at other times or places than those provided by law. Mell v. State, 133 Ark. 197, 202 S. W. 33. The presiding judge had no right to convene the court on the 26th day of October, after having adjourned it to a fixed day which was later in point of time. Therefore the order entered upon the record of October 26, 1914, was made in vacation, and furnished no basis for an additional assessment of the land that was within the district.” Parker’s demand of Anderson having been made on January 7th, a day prior to the discharge of the first bond, and the conversion having also occurred prior to the discharge of this bond, it follows that the sureties on both bonds are liable to the wards for the money so converted. Dugger v. Wright, 51 Ark. 232. But these sureties, being liable to the same person for the same debt, are co-sureties and as such, between themselves, are under the obligation to equalize their common burden. Dugger v. Wright, supra. The majority of the court are, therefore, of the opinion that, inasmuch as it was the purpose of the sureties who executed the second bond to thereby release the sureties on the first bond from liability and Parker paid over the sum of $504.50 only when assured that the second bond had been approved and the first discharged, it is considered equitable that this intent should be given effect by holding the sureties on the second bond primarily liable for this $504.50 paid to Anderson by Parker on January 7th. But the conversion of the $240 item occurred during the life of the first bond, as did also the $63 interest on the $500 loan, which was used in paying Anderson’s individual note at the bank, and the sureties on the first bond will, therefore, be held primarily liable for these two items. The decree of the court below will be reversed with directions to enter a decree in accordance with this opinion.