Hemphill v. Smith

Smith, C. J., delivered the opinion of the court. Sollie Overby, an adult about forty years old, was adjudged to he of unsound mind, and the appellant ivas appointed guardian of his person and estate.^ Some time thereafter Overby, by George W. Smith, his next friend, filed a petition in the court below praying for the appellant’s removal as his guardian, and on final hearing the prayer of the petition ivas granted, and another guardian was appointed. Hemphill has appealed to this court. It appears that in August, 1920, Angeline Smith died, leaving a will containing the following provision: “I give and bequeath unto W. T. Hemphill, my nephew, the remainder of my entire estate including my land in Sunflower county, and all of my personal property and whatever money I may have in cash on hand at my death, the said W. T. Hemphill is to use all of this money, personal property and real estate for the use and benefit of my son Sollie Overby, during his lifetime, and to take my son Sollie Overby into his care and custody, and provide for him in every Avay that will be necessary for his comfort and enjoyment and provide for him all the necessaries of life that he Avill need and that the property which I leave Avill justify. This property is given to the said W. T. Hemphill in trust for the use and benefit of said Sollie Overby, during his lifetime and at his death, the remainder, if any, to go to the said W. T. Hemphill, his heirs and assigns in fee simple. “The said W. T. Hemphill shall receive no pay for his services in the care and custody of my son and for the [592] handling of my estate other than he is to receive the remainder of the estate upon the death of my son Sollie.” Angeline Smith was the wife of George W. Smith and the mother of Sollie Overby by a former marriage. After the death of Mrs. Smith, Overby was adjudged to be of unsound mind, the appellant was appointed guardian of his person and estate, and by an agreement between himself and Smith, Overby was to remain with Smith, to whom an allowance would be made by the appellant for Overby’s support. At the time of Mrs. Smith’s death she, her husband, and Overby were living together in Sunflower county, where Smith and Overby still live. The appellant lives in Simpson county. Being of the opinion, according to his testimony, that he could better discharge the duty he owed Overby both under the will and as guardian by taking him into his own custody, and Smith being unwilling for him so to do, the appellant kidnapped Overby and carried him to Simpson county without the consent of Smith or of the chancery court, for which he was indicted, convicted and sentenced to the penitentiary. The record of this conviction was introduced in evidence without objection, from which it appears that the case was still pending on a motion for a new trial. Overby himself testified, and in so far as the record discloses was mentally competent so to do, and stated that he ivas content, and wanted to remain, with Smith. The appellant is a man of good character. While this cause was pending in the' supreme court the appellant’s conviction for the alleged kidnapping of Over-by, which had also been appealed to this court, was set aside, and the appellant was discharged. The contention of the appellant that he is a testamentary guardian of Overby is without merit, for, conceding that Overby’s mother attempted by her will to appoint him as such, a parent has the power to appoint such guardian for a minor child only. The invalidity of that provision of the will, however, will not affect the remaining provi [593] sions thereof, and the devise of the property therein mentioned to the appellant in trust is valid. The reversal of the appellant’s conviction on the charge of kidnapping Overby cannot be here considered, for the cause must be disposed of on the record made in the court below. Clark v. Smith, 110 Miss. 728, 70 So. 897. This conviction was sufficient to justify the removal of the appellant ; consequently it will not be necessary for us to decide whether his removal would have been justified had the record of this conviction been excluded. One of the contentions of the appellant is that the court below was without power in this proceeding to remove him as trustee under the will of Angeline Smith, but it will he unnecessary for us to decide whether or not he could or should have been removed as such trustee in this proceeding, for the reason that his removal as such trustee is neither prayed for in the petition ij£>r awarded by the decree removing him as guardian. Affirmed.