Gilbert v. McEachen

Handy, J., delivered the opinion of the court. This was á bill of review in the Court of Probates of Hinds county, filed by the appellees, who were wards of the appellant, for the purpose of correcting certain errors apparent in the settlement of the appellant as their guardian, in that court. The errors complained of in the bill are, that the guardian was allowed by the court in his final settlement, and for his expenditures for the support and maintenance of the wards, an amount exceeding the annual income of-the wards’ estates, the same having been allowed in several annual accounts of the guardian, but there had been no order of the court made previous to such expenditures authorizing the guardian to exceed the income of the estate for the education and [472] maintenance of the wards. The bill of review charges that the allowance to the guardian of this excess is erroneous, and seeks to charge him with the same and interest, and to correct the final settlement to that extent. It is, in the first place, insisted in behalf of the appellant, that inasmuch as he was allowed for this excess in his annual accounts, that was a sufficient justification for his exceeding the income, because it was an allowance to him by the court for the amounts expended, and cures the want of a previous order of the court authorizing him to exceed the income. But this point has been frequently decided by this court; and it must be regarded as settled, that in order to justify a guardian in exceeding the income of his ward’s estate in his expenditures for the maintenance and education of the ward, and in order to obtain allowance for such excess, there must first have been an order of the court authorizing him to do so. Austin v. Lamar, 23 Miss. 189; Frelick v. Turner, 26 Ib. 393. It is next insisted, that the testimony introduced shows that the expenditures were made by the guardian in virtue of authority granted to him for that purpose by the judge of probate, though an order for that purpose was not entered upon the records of the court. This evidence consisted of the testimony of the judge of probate, at the time of the appellant’s appointment as guardian; which was in substance, that he recognized as his handwriting a memorandum written in pencil-mark, indorsed on the inventory of money belonging to the wards’ estate, returned by the guardian, in these words: “ Order authorizing guardian to expend $300 per annum,” and that it was his custom, while judge, to make such memoranda, and hand them to the clerk to be entered on the minutes; that when a written petition was filed for the purpose, he either handed it to the clerk, if granted, directing him so to enter it; or he wrote the substance of the order on the petition, and handed it to the cleric; that a written petition was not required for such a purpose, though sometimes filed; and if one was filed in this case, it was unaccountable that the order was not made on that ; if the inventory or an annual account furnished the means of judging of the matter, it was sufficient to make a verbal application, and [473] the greater part of such orders#were so made. But he stated that he had no recollection of the application or order in this case. It is objected that this testimony is incompetent to prove an order to the guardian, as the same should have been a matter of record, and cannot he established by written memoranda of the judge not properly entered on the record. This position is well settled in this court. Burney v. Boyett, 1 How. 39; Dickson v. Hoff, 3 lb. 165; Russell v. McDougall, 3 S. & M. 234; Steen v. Steen, 25 Miss. 513. The order to the guardian was not,.therefore, legally proved, and the decree must be affirmed.