Gaines v. Gaines , 116 Ark. 508 ( 1915 )

Kirby, J.,

(after stating the facts). Appellant contends that appellees’ interest in the property under the deed of 'conveyance was a vested remainder, aud that the probate court had jurisdiction to authorize the execution of the lease disposing thereof, which it claims was executed in conformity to law and is a valid instrument.

There is much discussion in the briefs as£to whether the estate of the minors under the conveyance to their mother and themselves consisted of a vested or contingent remainder, but under our view, of the law, we do not find it necessary to determine this question. The mother of appellees remained the wife of their father until her death and had a life-estate in the property conveyed. The remainder belonged to the children living, born and to be born of the marriage, upon the termination of the life-estate and the probate court attempted to dispose thereof by authorizing their guardian to join the life-tenant in the lease to appellant.

The probate court has power to authorize the leasing and the sale of lands belonging to minors as conferred by the statute. Section 3789, Kirby’s Digest, authorizes the annual renting of the minors’ improved lands, designating the procedure to be followed by the guardian and giving the probate court power to order that such renting may be done publicly or privately, subject to the court’s or judge’s approval.

Section 3791 authorizes the guardian to let out the ward’s wild or unimproved lands, under the direction of the court, on improvement leases, not to extend more than two years beyond the majority of the ward.

Section 3794 authorizes the leasing or sale of the minor’s lands when necessary for their proper education, and section 3801 authorizes the real estate of the minor, “to be sold or leased and the proceeds put on interest or invested in productive stocks or other real estate” when it appears that it would be for the benefit of the ward, upon an order from the probate court, directing it. Sections 3802 and 3803 of Kirby’s Digest are section 34 of the Act,,of April 22, 1873, and provide the procedure for making such sale or lease of the land for investment for the ward’s benefit.

Neither the petition for, nor the order of the court authorizing the guardian to make the lease for the minors, shows that it was to be made for the education of the minors, according to their means or the investment of the proceeds for their benefit in securities or other real estate. Under said section 3803, the court is authorized, upon the petition praying therefor, after a full examination of creditable and disinterested witnesses, when it appears that it would be for the benefit of the ward, that his real estate should be sold or leased to “make an appropriate order for such sale or lease under such regulations and conditions, subject to the provisions of this chapter in relation to the sale of real estate of minors, as the court -shall consider suited 'to the ©ase,” etc.

The law regulating the sale of real estate of minors requires that such sales be -reported to-and approved by the court in order to their validity. (Section 3798, Kirby’s Digest) and this -court has invariably held such sales, if not confirmed by the court, void. Guynn v. McCauley, 32 Ark. 97; Apel v. Kelsey, 52 Ark. 341; Lumpkins v. Johnson, 61 Ark. 80; Morrow v. James, 69 Ark. 539; Harper v. Smith, 89 Ark. 284; Collins v. Paepcke-Leicht Lbr. Co., 74 Ark. 81.

-Conceding that the lease was attempted to be made for the benefit of the minors, for an investment, the court was authorized to make the order under such regulations and conditions as it should consider suited to the case, subject to the provisions of the law in relation to the sale of the real estate of the minors, which require ' such sales to be confirmed.

There is no claim that there was any report to the probate court of the lease having been made, nor approval thereof by it, but only that the court made the order directing such lease -and prescribing the terms and that the lease was in fact executed in accordance with the -order authorizing it, which it is contended was in effect :a -confirmation, if confirmation be required of a lease of minor’s real estate.

We do not agree with this contention. When th-e sale of the minor’s real estate is ordered upon the terms prescribed by the order directing it, it could as well be argued that if the sale was effected and the conveyance made in accordance with the prescribed terms, that it was a sufficient compliance with the law requiring confirmation. The lease executed amounted to -a sale of the interest of the minors in this valuable real estate, since by its terms it disposed of the property for a longer time than the average span of life, and for a consideration smaller than the annual rental value thereof. There was not a substantial compliance with the law in the making of the lease, or the sale of the.minor’s interest, and same was void, .and the court did not err in cancelling it. Mobbs v. Millard, 106 Ark. 563.

The answer did not deny that the rental value of the right to the use in common of the stairway and lavatories in the building belonging to the minors was not of the value of $30 per month as alleged in the complaint, and the proof introduced was sufficient to sustain the finding upon that point in any event.

There being no prejudicial error in the record, the judgment is affirmed.