Myers v. Wheatley

Hart, J. (after stating the facts). It appears from the record that the item of $300 for the purchase of the mules and the item of $50 for the purchase of the wagon were embraced in the exceptions to the third and final account-current of the guardian. The plaintiff, Ethel Alton Myers, was then of age and filed exceptions to her guardian’s account. The guardian and the ward both testified in that proceeding about the same items and their testimony was practically the same as it is in the present case. The court found against the ward in favor of the guardian upon the exceptions to his third and final account-current. This was a judgment of the court which was conclusive as to these items and the matter is now res adjudicada. All questions relating to these items were necessarily involved in the exceptions to the final settlement of the guardian in the probate court. The approval of the final settlement was an adjudication of all matters involved in it; and if the ward thought the judgment confirming her guardian’s account was erroneous, she should have appealed. Nelson v. Cowling, 77 Ark. 351; Nelson v. Cowling, 89 Ark. 334; Beakley v. Cunningham, 112 Ark. 71, and Moore v. Allen, 121 Ark. 335. It is also claimed by counsel for the plaintiff that the accounts should be surcharged and falsified because they show that the guardian expended for the maintenance of the ward more than the clear income of the estate without having previously obtained an order of the probate court therefor, and that the case comes within the rule announced in Campbell v. Clark, 63 Ark. 450. Therefore counsel claims that the accounts should be restated by giving such credits only as the probate court should have allowed in the first instance and that the court erred in holding that the guardian might obtain credits exceeding the income of his ward’s estate. As we have already seen, the ward was of age at the time the guardian filed his third and final settlement. She filed exceptions to his account and strenuously opposed his getting credit for certain items. The record shows that the first and second annual accounts of the guardian were thoroughly gone over in that proceeding. The ward stated in plain terms in that proceeding what items of her guardian’s account she objected to. No objection was urg’ed to the account that she was not of age at the time certain items were furnished to her and that these items exceeded the income of her estate. The items in question were necessaries, and she does not complain that she did hot receive them. On the trial of the exceptions she testified that she was willing to pay for anything that she had received from her guardian, and that he should receive credit for whatever he had furnished her. Under the circumstances, the probate court was justified in finding that she ratified the expenditure of all matters in the final settlement to which she made no objection. It is true that judgments of this sort are not to be extended by mere intendment, to matters not necessarily involved in the determination; but it is equally clear that all questions necessarily involved in the inquiry then before-the court must be regarded as finally and conclusively settled by the adjudication in that proceeding. In that proceeding the whole state of the accounts between the guardian and the ward was g-one into and the court, after restating the account in certain particulars, confirmed it. The ward being then of age and having filed exceptions as to all items of the first and second annual settlement, the court was justified in finding against him on the point now under consideration. Hudson v. Newton, 83 Ark. 223. Counsel for plaintiff places much reliance in the case of Stubblefield v. Stubblefield, 105 Ark. 594. We do not think that case has any application to the facts in the present case. There the judgment was reversed and the lower court was simply directed to take as a basis for settlement the sum shown to have been due in the guardian’s last settlement unless an affirmative showing should be made that there were notes or other property in his hands not included in that settlement. The very basis of the exceptions to the guardian’s final settlement in the' probate court as shown by the record in the present case was that the court had erred in allowing certain credits to the guardian. As we have already seen, testimony was taken as to these items and they were adjudicated in that proceeding. If the ward thought the judgment of the court was erroneous, she should have taken an appeal. Therefore, the decree will be. affirmed.