majority">Wood, J.,

(after stating the facts). (1) The demurrer, which was overruled, and to the overruling of which appellants excepted, challenged the jurisdiction of the chancery court, under the 'allegations of the complaint, to grant the relief prayed therein.

In Nelson v. Cowling, 89 Ark. 334-8, we said: “In the absence of some recognized ground of chancery jurisdiction the judgment of confirmation of the probate court is conclusive of all matters embraced in the settlement, for they may be said to be adjudicated, but the judgment is not conclusive as to matters omitted from 'the account, for these matters have not been examined or considered by the court and that which has not been fried can not be said to be adjudicated. Therefore, they may be surcharged in subsequent settlement.”

See also, Nelson v. Cowling, 77 Ark. 351-355, where, quoting from Trimble v. James, 40 Ark. 393, we said: “When these settlements have been duly confirmed, the orders of 'confirmation have the force and effect of judgments, which, if erroneous, may be corrected by appeal. Courts of chancery, however, may interfere to .correct fraud, or relieve against accident, or upon some other ground of acknowledged equity- jurisdiction, to prevent irremediable mischief.” Citing cases.

2. In Nelson v. Cowling, 77 Ark. 351, we held that .a complaint which charges a guardian with having failed to account for money he had received as guardian stated a cause of action within the jurisdiction of a court of chancery. In the last case we also held that where fraud is a ground for impeaching the guardian’s settlement in equity, actual or constructive fraud will suffice, but the acts constituting it must be specifically alleged and proved.

(3) Now tested by these decisions, the allegations of the complaint did not give the chancery court jurisdiction to surcharge and falsify the settlements of the guardian. The allegations of the complaint showed that the appellee, Jennie Allen, had a complete and adequate remedy at law, by appeal, to have the settlements corrected and made in the manner which she now alleges they should have been made.

In Crow, Guardian v. Reed, 38 Ark. 482, we held, (quoting syllabus): “A guardian must file separate accounts with each ward. A consolidated account for several wards should be stricken out by the court of its own motion. ”

The appellee came of age in 1910, and it is alleged in the complaint that at least three settlements were made subsequent to that time. In each of these settlements, by calling the matter to the attention of the probate court, she could have had a separate account stated by the guardian with herself, and could have had the settlement made by him with her, made in conformity with the doctrine 'announced in Crow, Guardian v. Reed, supra, if she had moved the court for such a settlement; and if the court had denied her such settlement it would have been error which would have been corrected by appeal.

(4) It will be observed that the complaint in this case does not allege that the appellant guardian had withheld in his settlement any funds due his ward for which he should account. It is not alleged that he had concealed anything from the probate court by failing to report any sums collected by him and that were due his ward. In regard to the rents, that charge, is not that he had failed to pay over the amount of rents actually collected by him or which he, as tenant, had paid for the land, but that he had not paid a sufficient amount and had only charged 'himself with a nominal sum when he should have charged himself with more. These allegations, according to the above cases, do not give the chancery court jurisdiction to surcharge and falsify the account of the guardian for fraud. The remedy for such delinquencies and omissions, which would constitute negligence in the guardian, are to be corrected by the probate court, or, upon its refusal to correct them, by appeal from its judgment.

(5) The further facts charged to constitute fraud in the settlements are that they were “joint settlements,” ■and that “the said guardian has never filed a separate settlement as guardian of the plaintiff herein at any time showing whatever interests,if any, were due by him to her for any cash on hand or for any rents, profits or income from any source whatever; ’ ’ and that it did not show that the settlement was fraudulent inasmuch as “it does not show the amount of money due each of his wards ’ ’ which was received by him, etc.

These 'allegations are sufficiently specific, and they .show irregularities .and errors in the manner in which the guardian made his settlements with the probate court, but they do not constitute fraud.

The chancery court erred therefore in overruling the demurrer to .appellee’s complaint and rendering final judgment .against the appellants, for which error the judgment will be reversed and judgment final will be rendered here dismissing the complaint for want of equity.

Citation profile

Relationships

How this case has been treated — in progress