In Re Bolin's Estate

The first error assigned is that the court was without jurisdiction to enter that part of the order requiring plaintiff in error to pay $765.83 to the clerk of the court, and for that reason the same is void. In this we concur. We are of the opinion that that part of the order infringed upon the rights of the guardian to an extent beyond the powers of the court to make, and to that extent is void. The jurisdiction of the courts of probate is not inherent. 9 Enc. Pl. Pr. 953. Such courts are purely creatures of statute, with certain limited statutory powers which must be strictly construed. Whenever they exceed the bounds of their statutory power, their acts to that extent are void.

In Myrick v. Jacks, 33 Ark. 425, the court, speaking of the powers of these courts, said:

"When they proceed to do a thing which, by proper proceedings and upon a proper case made, they are authorized to do, it will be presumed they have acted correctly; or if the proceedings have been irregular or the conditions of jurisdiction not strictly fulfilled, it is error to be corrected on appeal or certiorari. But if they undertake to make an order not authorized under any circumstances, although they may have jurisdiction over the same property for other purposes, it is void."

Mansf. Dig. § 3485 (Ind. T. Ann. St. 1899, § 2381) provided:

"The guardian of the person, whether natural or legal, shall be entitled to the charge, custody and control of the person of his ward, and the care of his education, support and maintenance. The curator shall have the care and management of the estate of the minor, subject to the superintending control of the court; and the guardian of the person and estate of the minor shall have all the powers and perform all the duties both of a guardian of the person and curator."

Under this statute, as well as at common law, said guardian was entitled to the exclusive possession, together with the care and management of the estates of the minors committed to his charge. Woerner's Am. Law of Guardianship, §§ 53, 54, 55, 61 and 62; Lee v. Lee, 55 Ala. 590. As he is not only chargeable with the safekeeping of this money, but with its judicious investment (Mansf. Dig. § 3512 [Ind. T. Ann. St. 1899, § 2408]), it is clear that the effect of this order, if carried out, would be to place it beyond his power to do either, and thus unwarrantably interfere with the faithful discharge of his duties. Besides, having given bond therefor, he was answerable thereon for its ultimate forthcoming, and is, for that reason, if none other, in contemplation of the law, its lawful custodian. That he cannot be deprived of its custody by order of court has been expressly held in determining the rights of a guardian under the Code of Civil Procedure of California, § 1753, providing: "That every guardian appointed shall have the custody and care of the minor and the care and management of his estate. * * *"

De Greayer v. Superior Court, 117 Cal. 640, 49 P. 983, 59 Am. St. Rep. 220, was certiorari to review an order of the Superior Court of San Francisco. Petitioner, as guardian, by will of the father of the ward and appointment of the court in his petition stated, in effect: That the estate of the father was in course of administration in said court; that said court had ordered distribution of a large sum of money to said ward, which at the time of the order was on deposit by petitioner as executor of the will of the father in a certain trust company; that he was required to give additional bond as guardian, and an order was made transferring said money to his account, as such, on the books of said company, whereupon the court of its own motion, and nothing more, further ordered that said moneys "be held by said California Safe Deposit Trust Company subject to the order of this (superior) court, and be paid out only as authorized by this court." It was there, as here, contended that this last order was beyond the power of the court to make and was void. In this contention the court concurred and annulled the order, and, referring to the statute quoted, supra, in passing, said:

"And the powers there given and the duties imposed are such as in their essential nature are wholly at variance with the existence of the right in the court to take the custody and management of the estate out of the hands of the guardian into its own. Under these provisions, as it was at the common law, it is the guardian, and not the court, who is made responsible for the proper administration of the trust. He it is to whose custody the property of the ward is intrusted, and to whom the law and the ward alike look for its safe return. In the performance of his duties he is, it is true, in certain respects under the control and supervision of the court appointing him; but this right of supervision does not, under our Code, nor did it at the common law, carry the power to interfere in any such manner with the custody and general management of the property of the ward, except, of course, for conduct authorizing suspension or removal."

Under the common law a general guardian was, equally with an administrator or executor, entitled to the care and management of the estate committed to his charge. In Re Welch, 110 Cal. 605, 42 P. 1089, the court said:

"I know of no law which authorizes a probate judge to direct an administrator where and how he shall keep the assets of an estate, and surely there ought to be no such law. The administrator is liable for their safety on his bond. If the court could lawfully take charge of them, it would deprive interested parties of this security. If goods are lost, it may be a question whether they have been properly cared for. If they have been placed where the judge has directed, and then lost, he will have prejudiced the case before the trial. Administrators cannot be deprived of the actual custody of the assets of the estate by such an order."

We are further constrained to believe that the power to make that part of the order complained of was never intended to be conferred on said court for the reason that the statutes nowhere clothe said court with power to enforce such an order. The only grant of power to said court to make an order upon the guardian to deliver to any one the property in his hands belonging to his ward is contained in Mansf. Dig. § 3534 (Ind. T. Ann. St. 1899, § 2430), which provides:

"The court of probate shall have power to order any property, real or personal, that may come to the possession of a guardian as such, and shall be in his possession at the determination of his guardianship, to be delivered to the person who was his ward, his executor or administrator, and enforce the same by attachment."

As it is not contended that the order complained of was made on final settlement, or that the guardianship was terminated or in any manner sought to be, we are wholly at a loss to know upon what provision of the statute the order was based.

There is another equally cogent reason why this part of the order is void and should be quashed. It was made without notice to this guardian. Mansf. Dig. § 5201 (Ind. T. Ann. St. 1899, § 3406), provides:

"All judgments, orders, sentences and decrees made, rendered or pronounced by any of the courts of this state against any one without notice, actual or constructive, and all proceedings had under such judgments, orders, sentences or decrees, shall be absolutely null and void."

While it is true that he was chargeable with notice of this proceeding so far as it pertained to the confirmation of his various reports (9 Enc. Pl. Pr. 957, and cases cited), this guardian was not chargeable with notice that in the same proceeding, it not being a final settlement, the court would order him to pay over the money in his hands.

Egner, Guardian, v. McGuire, Adm'r. 7 Ark. 110, was certiorari in the probate court of Independence county. In that case a minor had died leaving his estate in the hands of a guardian. Letters of administration were granted and on motion of the administrator the probate court made an order that the guardian deliver to him all the property in his hands belonging to the estate of his deceased ward. On certiorari the order was quashed for the reason, first, there was no notice to the guardian, and, second it was made before the guardian was required to make final settlement of his guardianship.

Rightor v. Gray, 23 Ark. 228, was certiorari to the Supreme Court to quash an order of the probate court of Phillips county. The facts were that William B. Rightor, guardian of the infant heirs of Henry Yerby, deceased, presented his settlement account to that court claiming a balance due him from his wards of $648.40, which account was finally approved. Subsequently, on motion of Rightor, said court made an order requiring Payton B. Gray, his successor as guardian, to pay him said balance. The Supreme Court in passing said:

"But it appearing that the order of January 26, 1860, requiring Gray, the successor of Rightor, to pay over to him the balance found due him, was made without any notice to Gray, and without his voluntary appearance in the probate court, the circuit court must be instructed to quash that order for irregularity, and remand the cause to the probate court for further proceedings" — which was accordingly done.

It is further contended that the court "erred in passing said order and judgment without allowing or denying plaintiff's claim for services rendered." We presume the "claim" referred to was that filed by the guardian June 22, 1906, expostulating against the disallowance, by the "clerk of probate," in all of $770 alleged to have been paid to certain parties in purchasing lands for his wards to file on and for fees due himself for filing thereon and for fees in a "general way" for looking after the minor's estate. With reference to this claim we think it sufficient to say that the record not only fails to discloseprima facie proof thereof (Merritt v. Wallace, 76 Ark. 217, 88 S.W. 876), but, on the other hand discloses the affidavit of Chili Nelson taken by the "clerk of probate" before whom thebona fides of this claim was under investigation, which discloses that he never sold to said guardian the possessory right to the land set forth in said "claim," and that the alleged payment of $80 therefor by said guardian was never made in whole or in part, and a like affidavit by George Colbert to the effect that, while he did convey the possessory right of certain land to said guardian for said heirs, said guardian never paid anything for it. The record, also contains other evidence not necessary to mention, which to our minds was sufficient to justify the court, in effect, in disallowing these claims and proceeding under the statute to allow this guardian such compensation for his services as to the court seemed just and reasonable, pursuant to Mansf. Dig. 3536 (Ind. T. Ann. St. 1899, § 3432). Although the order does not on its face show that any compensation was allowed, yet the record discloses that by said order the court, in effect, confirmed the report of the "clerk of probate" filed October 9, 1906, in which was recommended as allowance for compensation, $45.68 out of the estate of Morgan Bolin, a like amount out of the estate of James E. Bolin, and $43.55 out of the estate of Joseph Bolin. With the exercise of this discretion we see no reason to interfere.

We are therefore of the opinion that the court erred only in making that part of the order complained of directing "the guardian to pay to the clerk of the court the sum of $756.83," and that all of said order should stand except said part which is directed to be set aside, and the cause remanded for further proceedings in accordance with this opinion.

All the Justices concur.