688 BEI-LOTT V HARRIS. [190 • BELLOTT V. 'HARRIS. 4-.3812 . Opinion delivered -April 1, 1935: 1. GuAREhAN AND WARDSURCHARGING . SETTLEMENT. —A judgment of . the circuit court disallowing a curator's claim for money alleged to have been advanced to his ward, for which the curator had no receipts or vouchers, held conclusive where the evidence conflicted as to whether such advancements had been•made. 2. GUARDIAN AND WARD—SURCHARGING SETTLEMENT.—Loans made bY a curator without authority of ihe probate conit were properly • disallowed where . it did not appear that the notes and mortgages evidencing them were taken in the name of the curator as • . such or that.they were worth their face ,yalue.,, . GUARDIAN AND WARD—COMMISSIONS.—A curator was properly.dis-, allowed commissions where he refused to file his annual settle-' Ment until twiee Cited to Show' cause why his settlement had not "'been* filed Where he refused to : adjuSt his accounts with his guc-cessOr without .court action, and where he made loans withoui .. the court's approvai. • .• Appeal from Union Circu'it Court Sec o . nd Division; W. A. Spear, Judge ; •affirined: COulter cf Coulter, for appellant. . • 1. W. Steimétt, for appellee. HumilikgYs, J. This is an appeal froM a judgMent of the circuit court of Union County, Second Division, sustaining .certain exceptions • to appellant's first and final account as curator of the .estate of his ward, Alfred Flenniken. He was appointed curator :in: succession to Bobbie Lively and received from her on February 2, 1932, the sum of $5,105.79 in cash, -and . thereafter collected $440.90 as royalties, making an aggregate amount received of $5,546.78 'belonging to said ward. Having.failed to file bis annual report, he was cited by the probate court to appear on the 2d . day of August, 1933, to show . cause why he had not done so. He ignored the citation and was -again ,cited to appear on the 27th day of December, 1933. .On the 8th day of January, 1934, he appeared and requested, and was granted, an extension•of ten days to file his account. On the 18th day of January, 1934, having failed to file his : account, appellee herein was appointed curator in succession for said minor on said date. Appel-
ARK.] BELIAM V. 'HARRIS. 689 lant filed his report on the day of February, 1934, to which exceptions were filed by 'appellee. On appeal to and ti-ial de novo in the, circuit court, items representing claims 'for alleged amounts advanced to said minor for supPOrt and Maintenance not supported by vouchers were disallowed:. Two loans in the total sum of . $2;385.14, alleged to have been made out of the minor's funds Were also diSallowed on the ground that they were not authOrized to be'inade by the probate court. • A claim for $600 commissions for adininistering. the' estate: was also. disallowed. • The circuit court restated the first and final account *filed by' appellant -by surcharging the' account with the 'items disalloWed; Which resulted in a finding and judgment against appellant in the aggregate amount- of $5,429.84.. -, . The firSt question arising on the appeal is whether the. , trial court erred in surcharging the account with $1,638.08, cOvering items clahned to have been advanced by :apPellant for the support and maintenance -of his ward, for - which he .held no voucherS or receipts. The testimony. touchink these items was iii conflict, and there is' substantial . evidence . in the reCord s sustaining the finding . Of the court ; hence the 'finding.caunOt be disturbed by this court on appeal. Warren v. Nix - , 97 Ark: 374. , 135 S. W. 896. . . The: , n . ext queStion ariSing on this appeal is whether the trial 'Court erred" in:Surcharging the account with unauthOrized lOans i n the Sum Of $2,385.94'..D, is undisputed that 'these hianS Were Made Without atthority of the probate court, atid it does not appear from the record Whether the notes and mortgages Were taken in the name Of g piiellee as cuiatOr. . They were not introduced in evidence, .and there is no testimony in the record that they are worth face value, or that their face valne can be realized. Section 5067 . of ' Crawford & Moses' Digest is as *follows . "I ' co guardian ' shall be — personally responsible for any money belonging to his ward and loaned out by him, under the directions of the court, and on security which
690 BELLOTT V. HAIMIS. [190 may have been approved by the court, in case of.inability of the person to whoth such money may have been loaned or.his security to pay the same." In the case of Parker v. Wilson, 98 Ark. 553, 136 S. W. 981, after quoting said § 5067 set out above, this court said: "Where a gnardian loans the ward's money without first obtaining an order of the court, authorizing him to make the loan, he assumes the responsibility." See also United States Veterans' Bwreau v. Riddle, 186 Ark. 1071, 52 S. W. (2d) 826. Under the evidence in this case, there, can be no question that the trial court properly surcharged the account with the amount of the two loans. It goes without .saying that- appellant may collect these . two loans for his own benefit. The next and last question arising on this appeal is whether or not the trial court was correct in disallowing the itein of $600 claimed by' appellant for administering the estate. This court said in the case of Reed v. Ray-burn, 23 Ark. 47, that : "Guardians , shbuld be held, to accOunt strictly and faithfully for the trust funds that come into their hands ; and no compensation should be allowed them where they have neglected their duties,,mismanaged the property of their wards, perpetrated positiVe wrongs and injnries towards them." , - In 'the instant case, appellant failed and refused . to file his annual settlements,. and did not , do so until after he had been cited the second time to show cause:why .the settlement had. not been filed.. Later he was discharged, and appellee : was appointed his successor, and, in order to get an adjustinent of the matter, was compelled to file eiceptions, to almost every item in the account and to prosecute this case from the probate court to the highest court in the State before obtaining a judgment for the arnont due the Minor by appellant. We think the court was clearly right in denying 'appellant any fees or commissions for thus administering the estate of his ward. No error appearing, the judgment is affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.