Opinion
No. 31641.
March 25, 1935.
1. GUARDIAN AND WARD.
Guardian in order to expend more than income of ward's estate, except under extraordinary circumstances, must first secure court order fixing amount to be expended (Code 1930, section 1903).
2. GUARDIAN AND WARD.
Statute requiring guardian to secure court order prior to expending more than income of ward's estate is not a mere re-enactment of common-law rule so as to give court authority to approve expenditures after they had been made, if court would have approved same had they been presented for allowance prior thereto (Code 1930, section 1903).
3. GUARDIAN AND WARD.
Where record disclosed that guardian had expended ward's funds and given ward money on ward's request without written court order authorizing such expenditures as required by statute, decree which approved guardian's final account was reversed and cause remanded to determine amount of sums which had to be expended before court order could be secured (Code 1930, section 1903).
APPEAL from the chancery court of Simpson county.
HON. T. PRICE DALE, Chancellor.
Final accounting of Emery C. Mangum, guardian of Ethel F. Mangum, non compos mentis, to which the Deposit Guaranty Bank Trust Company filed exceptions. From an adverse decree, the Deposit Guaranty Bank Trust Company appeals. Reversed and remanded.
H. Chalmers Alexander, of Jackson, for appellant.
The administration of the estate of a ward non compos mentis follows the procedure, insofar as necessity for publication to creditors to probate claims existing at time of appointment of the guardianship, prescribed for the administration of the estate of a decedent — a requisite upon the appellee as guardian at the beginning of his guardianship.
Sections 1902 and 1903, Code of 1930.
Webster defines the word "emergency" as "any event or occasional combination of circumstances which calls for immediate action or remedy; pressing necessity; exigency." An emergency requiring the building of a bridge, arising before and after an emergency act went into effect, is an "emergency" within the legislative act.
People v. Supervisors, 21 Ill. App. 271-4; 3 Words Phrases, Emergency, page 2361; Cent. Dictionary.
The word "necessary" means such as must be; impossible to be otherwise; not to be avoided; inevitable.
Lockwood v. Midleberger, 159 N.Y. 181, 53 N.E. 804; Stevenson v. State, 17 Tex. App. 634[ 17 Tex.Crim. 634].
A guardian's final account is incomplete unless the account show a distinct statement of all the balances of his annual accounts, either as debits or credits.
Sections 1890 and 1893, Code of 1930; White v. Moore, 144 So. 698.
If the guardian contracts even though for the education and necessities of the ward he incurs only personal responsibility, for he has no power to bind the estate without the sanction of the chancery court.
Dalton v. Jones, 51 Miss. 585.
If there be no prior or precedent order to such effect, any expenditure of ward's estate by the guardian without prior sanction of the court, even if for education and maintenance of ward, does not bind the ward's estate unless the expenditure be from income.
Dalton v. Jones, 51 Miss. 585; Sample v. Lane, 45 Miss. 556; Gilbert v. McEachern, 38 Miss. 469; Hobbs v. Harlan, 10 Lea (Tenn.) 268, 43 A. Rep. 309.
J.B. Hutton, Jr., of Jackson, for appellant.
No guardian shall make any expenditure in excess of his ward's income for the ward's support and education without a previous order of the court or chancellor, authorizing the same.
Sections 1876 and 1903, Code of 1930; Union Chevrolet Co. v. Arrington, 162 Miss. 816, 138 So. 593.
The court has held that the expenditure of the corpus of the estate could not be approved without a precedent order of the court.
Austin v. Lamar, 23 Miss. 189; Brown v. Mullins, 24 Miss. 204.
In the case before the court the guardian had exceeded the income of the estate without precedent order of the court and the expenditure was disallowed.
Frelick v. Turner, 26 Miss. 189.
The fact that the annual accounts allowed the guardian credit for the excess does not cure the want of a previous order of court.
Gilbert v. McEachern, 38 Miss. 469; Wiggle v. Owen, 45 Miss. 691; Darter v. Spiers, 61 Miss. 148.
A sworn account not accompanied by the vouchers required by law and not approved by an order of the court is insufficient, and is not of any probative value in support of the expenditure for which credit is therein claimed.
White v. Moore, 144 So. 696; Dalton v. Jones, 51 Miss. 587.
The general rule undoubtedly is that a guardian may not ordinarily exceed the income of the ward in his maintenance and education without a previous order of court therefor. But there are exceptions to the rule. When the ward's life is in competition with the rule requiring previous order of the court, the rule yields. This is one of the exceptions mentioned in Frelick v. Turner, 26 Miss. 394, when it is said it is only in very special cases such as could not be foreseen that the court ought under any circumstances to sanction a charge of this kind not previously authorized by court.
Williams v. Bonner, 79 Miss. 664.
Veterans compensation when paid to an administrator is the corpus of the estate.
Anderson v. Steddum, 194 S.W. 1132; Bagwell v. McCombs, 31 S.W.2d 835; Gilbert v. Hines, 32 S.W.2d 877.
R.C. Russell, of Magee, and J.A. Covington, Jr., of Meridian, for appellee.
Ruling Case Law states the rule to be "while in some of the American decisions, chiefly the earlier ones, the exercise of that power is strictly limited to the income, and it is held that any encroachment upon the principal must have been previously sanctioned by the court, other courts have applied the rule less strictly, holding that expenditures even out of the principal will be allowed as credits, if they appear to have been proper and reasonable, and such as the court would have ordered if it had been applied to, and that is the rule now generally prevailing."
12 R.C.L., p. 1158; Preble v. Longfellow, 77 Am. Dec. 227; Pfefferle v. Herr, 138 A.S.R. 518; Hobbs v. Harlan, 43 Am. Rep. 309; Roseborough v. Roseborough, 3 Bast. 314.
Argued orally by J.B. Hutton, Jr., for appellant.
The appellee, Emery C. Mangum, was appointed guardian of Ethel F. Mangum, non compos mentis, and, as such, received from the United States government funds for said ward who was shell shocked, resulting in the impairment of his mind. The guardian received from the United States government a total amount, during the guardianship, of seven thousand one hundred fourteen dollars and sixty-eight cents. The funds so received were never invested, but were placed in the bank at Magee where the guardian and ward lived, and were checked out and expended in various amounts and for various purposes, without any previous order of the chancery court so to do. The guardian finally resigned, and the appellant bank was appointed guardian and filed exceptions to the annual and final accounts. Emery F. Mangum was placed on the stand as an adverse witness and interrogated in reference to his expenditures and accounts, and it appears from his testimony that he furnished the ward money whenever he demanded it, and did not secure any written orders from the chancery court authorizing same. He testified that he had personal interviews with the chancellor who told him to do the best he could, and with physicians who told him to humor his brother as far as possible, and not to antagonize him any more than he could help. He further testified that his brother, the ward, has a violent temper, and that he would become infuriated when he was not given money, and it was always given to him if the guardian had it. He further testified that he considered the chancellor the court, and frequently telephoned or had conversations with him about allowances to his brother. Accounts were filed at irregular intervals, which showed heavy expenditures. For instance, in the fourth annual account, approved November 21, 1928, it was recited that he had on hand, at the last accounting, the sum of five hundred thirty-two dollars and twenty-five cents, that he received from the United States government nineteen payments of one hundred dollars each, equaling one thousand nine hundred dollars, making a total received of two thousand four hundred thirty-two dollars and twenty-five cents, and that he had expended during this period the sum of two thousand four hundred thirty-two dollars and twenty-five cents, and that said expenditures, as set forth, were approved. It was set forth in said account that the guardian was directed to pay his mother the sum of fifteen dollars each month.
It seems to have been the idea of the guardian that he was authorized to spend money at his discretion, and he frankly admitted that he received no written order therefor. The ward was permitted to roam about the country, and to draw checks or drafts which were taken up or honored by the guardian without authority of the court. On one occasion, a brother of the guardian was permitted to take the ward West, ostensibly on the ground of ill health, and the brother was given two hundred fifty dollars, and they had proceeded as far as Dallas, Texas, where the ward left the brother during the night, taking from his brother's pockets the two hundred fifty dollars. No order is shown to have been given the guardian for that sum.
In November, 1924, there was an order of court authorizing the expenditure of thirty dollars per month for the ward, but this limitation was never observed, and the amounts expended were approved by the court as they were presented from time to time.
We have examined the various items, and find no clear showing of any emergency calling for any unusual expenditures.
By section 1903, Code of 1930, it is said, among other things, that: "It shall be the duty of the guardian of persons mentioned in the foregoing section [insane persons, etc.] to improve the estate committed to his charge, and to apply so much of the income, profit or body thereof as may be necessary for the comfortable maintenance and support of the ward, and of his family, if he have any, after obtaining an order from the court fixing the amount," etc.
In order to expend more than the income of the estate it is necessary for the guardian to secure an order of the court prior to such expenditure. Chapman v. Pentecost, 161 Miss. 600, 137 So. 539, in which it was held that a precedent order of the court or chancellor is indispensable in determining whether the guardian shall bear the expenses of a ward whose parents are living. It is true this decision was rendered in a case where a minor was involved, but the same rule is applied as to others. The statute plainly requires a previous order of court. See, also, Austin v. Lamar, 23 Miss. 189; Brown v. Mullins, 24 Miss. 204; Frelick v. Turner, 26 Miss. 393; Gilbert v. McEachen, 38 Miss. 469; Wiggle v. Owen, 45 Miss. 691; Darter v. Speirs, 61 Miss. 148; White v. Moore, 164 Miss. 272, 144 So. 696; Dalton v. Jones, 51 Miss. 585, 587.
It is true there are exceptions where life and death are involved, and perhaps other extreme and extraordinary conditions, in which guardians may not be able to secure previous orders, and in which they would be allowed to make expenditures. Williams v. Bonner, 79 Miss. 664, 31 So. 207.
It is argued that section 1903 is a mere re-enactment of the rule at common law upon the subject, and at common law the court had the power to approve after the expenditures, if it would have approved same if they had been presented for allowance prior thereto. We are not able to accept this theory of section 1903, and of the other statutes directing previous orders to be obtained. The statute was designed to secure estates of wards from rash and reckless expenditures, and to keep under the scrutiny of the court claims for money before expenditures are made.
It is not entirely clear but what some of the expenditures in the case at bar may have been necessary where the ward was away from home and had to be returned thereto, but there is no showing in the record that an order of the court could not have been obtained for that purpose, or that it was necessary for him to have gone to that distant point. It rather appears that the ward was allowed to go where he pleased and when he pleased, and spend as much as he pleased.
The decree of the court below, therefore, will be reversed, and the cause remanded for a hearing in accordance with the principles announced herein.
Reversed and remanded.