Opinion
No. 29522.
November 9, 1931.
1. GUARDIAN AND WARD.
Precedent order of court or chancellor is indispensable in determining whether guardian shall bear expenses of ward having parent living (Code 1930, section 1877).
2. GUARDIAN AND WARD.
No recovery could be had on check given by guardian for minor's tuition without prior court order, where ward's parents were living (Code 1930, section 1877).
APPEAL from chancery court of LeFlore county; HON. R.E. JACKSON, Chancellor.
Hill Hill, of Tupelo, for appellant.
It is almost the universal holding of all courts that the parent, guardian and the estate of minors are bound and liable for the full amount of the tuition and charges of the school for the full year.
Bingham v. Richardson, 60 N.C. 132; Horner School v. Wescott, 124 N.C. 520; Horner v. Baker, 74 N.C. 65; Bingham v. Richardson, 60 N.C. 215; Curry v. Laswell Seminary Co., 168 Mass. 7, 46 N.E. 110; Van Brink v. Lehman, 192 N.Y.S. 342; William v. Stein, 100 Misc. Rep. 677, 166 N.Y.S. 836; Teeter v. Horner Military School, 165 N.C. 564, 81 S.E. 767, 51 L.R.A. (N.S.) 975, Ann. Cas. 1915D, 309; Manson v. Culver Military Academy, 141 Ill. App. 250; Fessman v. Seeley, 30 S.W. 268; Collins v. Price, 5 Bing. 132; International Text-Book Co. v. Martin, 92 Neb. 430, 138 N.W. 582.
The chancery court has full jurisdiction in matters testamentary and of administration, and minor's business.
Sections 303 and 329, Hemingway's Code 1927.
Guardians will be protected by the court in necessary and proper disbursements made for the benefit of their wards, though made without prior order of the court, even though they trench upon the capital or corpus of the estate.
Williams v. Bonner, 31 So. 207.
In some jurisdictions the rule is adhered to that the guardian, to justify expenditure of the principal and claim reimbursement, must obtain the proper order in advance, denying him indemnity, although the conditions were such as that the necessary order would have been granted if applied for in advance. But this court long since adopted the less rigid rule of ratifying in such cases that which would clearly have been previously authorized, at least to the extent of allowing credit to the guardian, upon the settlement of his accounts, for sums paid out for maintenance and education from the principal of the estate, or beyond the income realized by him.
Bellamy v. Thornton, 15 So. 831; Steward v. Lewis, 16 Ala. 734; Montgomery v. Givhan, 24 Ala. 568; Calhoun v. Calhoun, 41 Ala. 369; Waldrom v. Waldrom, 76 Ala. 285; Nolan v. Stark, 84 So. 398.
We deem it unnecessary to make any argument to the court that an education is necessary. Here is a situation where a young man had four thousand dollars in his own right and the guardian, who is also one of the parents of the young man has asked the court and the court granted an order authorizing the expenditure of a small part of the corpus of the estate for the purchase of wearing apparel and doctor's bills, which clearly shows this young man was not being supported by the parents.
Gardner, Odom Gardner, of Greenwood, for appellee.
If the ward have a father or mother, the court, or chancellor in vacation, shall determine whether the expense of maintaining and educating him shall be borne by his guardian or not.
Sec. 1877 of the Code of 1930.
The court cannot ratify a guardian's expenditure for the maintenance of his ward, who has a parent; a precedent order is necessary.
Boyd v. Hawkins, 60 Miss. 277; Darter v. Speirs, 61 Miss. 148; Ex Parte George, 63 Miss. 143.
Appellee is the guardian of the minor, Clarence Pentecost. The said ward, at the time herein mentioned, was residing with his father and mother, both then living. The said guardian, without any precedent order of the court, entered said ward in the private school of appellant and gave her guardian's check for three hundred forty-four dollars and seventy-five cents, entrance and tuition fee. A few days thereafter the ward was withdrawn from the school, payment on the check was intercepted, and thereafter appellant, the payee in the check, brought suit against appellee as guardian to recover the amount of said check; and the chancellor denied recovery.
Section 1877, Code 1930, section 2414, Code 1906, reads as follows: "If the ward have a father or mother, the court, or chancellor in vacation, shall determine whether the expense of maintaining and educating him shall be borne by his guardian or not." Under this statute, it has long been the settled law that a precedent order of the court or chancellor is necessary and that the court cannot thereafter make an order of ratification. The salutary purpose of the statute is evident, and its enforcement must be imperatively upheld for the accomplishment of its purpose. Darter v. Speirs, 61 Miss. 148; Ex parte George, 63 Miss. 143; Boyd v. Hawkins, 60 Miss. 277.
Affirmed.