Opinion
No. 28267.
March 30, 1931. Suggestion of Error Overruled May 4, 1931.
1. GUARDIAN AND WARD.
Existence of sufficient cause for removal of guardian is within sound discretion of chancellor, which will not be disturbed, except for manifest abuse (Code 1930, sections 1872, 1873).
2. GUARDIAN AND WARD.
Union of guardianship of person and estate of minor is desirable, especially where guardian is minor's parent.
3. GUARDIAN AND WARD.
Stranger may be removed as guardian of minor in order that blood relatives may be appointed; blood relatives being preferred over strangers.
4. GUARDIAN AND WARD.
Removing guardian of estate of minor on petition of mother and appointing mother as such guardian held not abuse of discretion (Code 1930, sections 1872, 1873).
5. PLEADING.
Allegation of unfitness of guardian of minor's estate in petition of mother of minor for removal, also praying for appointment of mother, held surplusage (Code 1930, sections 1872, 1873).
6. GUARDIAN AND WARD.
Liability of guardian of minor's estate on removal and surety on official bond ceases when final account is filed and approved (Code 1930, sections 1872, 1873).
APPEAL from chancery court of Marion county; HON. T.P. DALE, Chanctllor.
Hall Hall, of Columbia, for appellant.
Where a person having a prior right to be appointed guardian procures or consents to the appointment of another, he waives his right and cannot claim letters for himself to the exclusion of the person so appointed.
28 C.J. 1082, section 53; In re Morhoff, 179 Cal. 595, 178 P. 294; Lefever v. Lefever, 6 Md. 472; Kahn v. Israelson, 62 Tex. 221.
All of the loans, with the exception of one secured loan of twenty-five dollars, were reported to the court and approved by the court, and the lower court erroneously entered its decree holding the guardian and his surety responsible for the collection of these loans, in direct contravention of our statute on the subject.
Chapter 201, Laws of 1914, Sec. 1885, Code 1930.
Some of the issues raised by the petition for removal of the guardian were not decided, and the decree specifically provides that these issues are not passed upon. These issued will not be considered by the supreme court.
McDowell v. Brooks, 18 So. 657; Thompson v. Bank, 85 Miss. 261.
It does not require so strong a reason to prevent an appointment of a guardian as it does to remove one after the appointment has been made; and it is considered that a guardian should not be removed except for the most cogent reasons.
28 C.J. 1101.
The discretion of the chancellor, of which mention is frequently made in connection with his power of supervision and removal of guardians, is not an arbitrary or capricious but a judicial discretion, to be exercised not in total disregard but with due regard to all the legal rights of all concerned. In no case, so far as we are advised, has the court of chancery undertaken to interfere with a guardian without assigning therefor some reason in equity.
Lord v. Hough, 37 Cal. 657.
It is true that in cases of this description the interest of minors is to be regarded, and in certain extreme cases it may be that the court has the discretionary power to act or not; but there is no law or practice that will justify a court in taking a ward from the care and custody of his legally appointed guardian where his wants are carefully provided for, and bestow such custody upon one who has at most an inferior right to it.
Macready v. Wilcox, 33 Conn. 321.
Powell, Harper Jiggitts, of Jackson, for appellant.
A guardian and his surety should not be held liable for collection of loans which had previously been authorized and approved by the court, where such guardian is removed without cause.
21 Cyc. 90; Section 2098, Hemingway's Code of 1927, Section 1885, Code of 1930; Cohn v. Winslow, 115 Miss. 275, 76 So. 246.
After the death of the father, a mother of a minor who procures the appointment of a stranger as guardian cannot have the stranger removed as guardian without cause.
21 Cyc. 37; Spaun v. Collins, 10 S. M. 624.
Rawls Hathorn, of Columbia, for appellee.
In determining whether or not the chancellor erred in this instance in the exercise of the discretion confided to him to remove guardians, this court should consider this case in the same light and with the same facts before it that the chancellor had before him.
Grounds that have proven sufficient to justify the court in removing a guardian are unsuitability, unfitness, existence of interests of the guardian adverse to those of the ward, insufficiency of the security given by the guardian.
28 C.J. 1101.
The trial court is usually allowed a liberal discretion in the matter of removing or refusing to remove a guardian, and an appellate court will not interfere with such discretion unless it clearly appears that it has been abused.
12 R.C.L. 1118.
Considering the circumstances shown in evidence did the trial court abuse its discretion. In considering this question this court is required to indulge in every reasonable intendment supporting the propriety of the rulings appealed from. The presumption of regularity of action by the trial court is peculiarly persuasive in probate and guardianship proceedings under our system of practice, in which these courts come to have more or less familiar knowledge of the several estates and trusts being administered within their jurisdiction, and are in far better position to know and appreciate the necessity and propriety of the orders made by them and the trustworthiness of persons holding such trusts than is possible for this court to attain from an examination of the printed record.
In re Nelson, Ann. Cas. 1912 B. 974; People v. Buck, 149 Ill. App. 283.
A guardianship matter is, to a considerable extent within the sound discretion of the court administering the estate; and if, for reasons satisfactory to the court, though not designated in the statute, it deems that the interest of the estate will be best served by the removal of the guardian and the appointment of another, a court of review will very reluctantly interfere with its action in that particular.
People v. Buck, 149 Ill. 283; Clark v. Smith, 110 Miss. 732.
The chancery court has a general superintendence of all fiduciary relations, and when that court removes, of its own motion, one of its trustees for misconduct endangering the safety of the trust property, it will have to be a very plain case of palpable injustice before this court will in any way interfere with the action of the chancery court.
Mutt v. State, 96 Miss. 473.
The paramount consideration in the selection of a guardian is the interest of the infant, by which is meant his lasting good.
28 C.J. 1075.
Neither appellant nor the surety on his guardian's bond, under the law and under the terms of the bond, can complain if the court now insists that the corpus of the estate be placed in such form as will save it for its rightful owner, the minor ward, whose interest and welfare is always the first and paramount consideration of a court of equity and conscience.
Argued orally by Lee Hall, for appellant, and by C.V. Hathorn, for appellee.
Several years ago the appellant was appointed guardian of the estate of the appellee's minor son; she then waiving her right to the appointment, but retaining the custody of her son. The boy is not yet fourteen years old. The appellee filed a petition requesting the removal of appellant as guardian of her son, and the appointment of herself in his stead. The petition charged mismanagement by the appellant of the ward's estate, and evidence in support thereof was introduced. The court declined to pass upon this evidence, but held that the evidence discloses that the reason which caused the appellee to waive her right to the guardianship of her son had disappeared, and that she should now be appointed as his guardian. The decree removes the appellant as guardian of the minor; appoints the appellee as such; directs the appellant to file a final account of his guardianship; to turn over the minor's estate to the appellee when she qualifies as guardian thereof; and provides that her receipt therefor shall "constitute a full acquittance and release to the said guardian and the surety on his guardian's bond for all items of cash delivered to said guardian, but as to all amounts due said minor's estate as evidenced by notes, deeds of trust or securities, other than cash on hand, the guardian, C.E. Conner and the surety on his bond, shall not be released and acquitted therefor until such time as the same shall have been paid, or shall have been put into such secured form as may hereafterwards be approved by the court or until the court shall relieve said guardian and surety."
Section 1872, Code 1930, provides that "the court by which a guardian was appointed, may, for sufficient cause, remove him after having him cited to appear;" and section 1873 thereof provides that, "whenever a guardian . . . is removed, the court may appoint another." The statute does not designate the causes for the removal of a guardian, but leaves that to the sound discretion of the chancellor, which discretion should not be interfered with by this court, unless it has been manifestly abused.
The union of the guardianship of the person and of the estate of the minor is always desirable, particularly so when the person in whom the two guardianships united is the minor's parent. The statute prefers blood relatives of the minor to strangers; and a stranger may be removed as guardian in order that a blood relative of the minor may be appointed. Spaun v. Collins, 10 Smedes M. 624. In that case, the blood relative, an uncle, had not waived his right to the appointment, but such a waiver does not forever bar the blood relative from being thereafter appointed when, in the opinion of the chancellor, his appointment is desirable. Here the mother is shown to be a person suitable for the trust, and the advantages flowing from the union of the guardianship of the estate with that of the person are generally such that it cannot be said that the removal of the appellant and the appointment of the appellee was an abuse of discretion.
Counsel for the appellee rely on 28 C.J. 1082, section 53, where it is said that: "Where a person having a prior right to be appointed guardian procures or consents to the appointment of another, he waives his right and cannot claim letters for himself to the exclusion of the person so appointed." This text is based upon the holdings in three cases. In re Morhoff's Estate, 179 Cal. 595, 178 P. 294; Lefever v. Lefever, 6 Md. 472; Kahn v. Israelson, 62 Tex. 221. In the first two of these cases, the courts simply held the trial court had abused its discretion in refusing to remove the guardian and appoint another who, under the statute, had a prior right to the appointment. In the third case, this court held that the statute expressly provided the grounds for the removal of a guardian, and thereby excluded any other. We are not here holding that the appellee has an absolute right to the removal of the appellant and the appointment of herself, but simply that the matter rests in the sound discretion of the chancellor. But it is said by counsel for the appellant that the petition alleges that he is unfit for the discharge of the trust, prays for his removal on that ground, and, consequently, the court below should not have removed him, unless the allegations of his unfitness were sustained. The petition alleges that the appellee is the minor's mother, prays for the removal of the appellant as his guardian, and for the appointment of the appellee in his stead. This is sufficient to support a decree without the allegations of the appellant's unfitness, which may be treated as surplusage.
Complaint is made of that portion of the decree hereinbefore quoted which provides that the appellant and his sureties shall not be released from liability on account of appellant's guardianship until the loans of his ward's money made by him "shall have been paid, or shall have been put in such secure form as may be hereafterwards approved by the court, or until the court shall relieve said guardian and surety." This provision of the decree adds nothing to the appellant's and his surety's liability, which liability will cease when his final account is filed and approved. Should any loss accrue to the ward's estate after the appellant has turned it over to the appellee, caused not by any dereliction of duty on his part but on the part of the appellee, she, and not the appellant, will be responsible therefor.
Affirmed.