majority">Hemphill, Ch. J.

On or about the 14th December, 1854, James H. Spillman departed this life, having, a short time previous to his death, executed his last will and testament, to the effect as follows : I want my children brought to Galveston ; Dr. Stone to take charge of them as guardian for them ; sell the perishable property ; rent out the house ; hire out the negroes, &c ; my son Charles I want Mrs. Stone to take charge of, and keep him with her until he is old enough to put to school as a child of her own.

(Signed,) J. H. SPILLMAN.

Attest: John Burgess,

J. H. Sxlvester,

Sarah A. Stone.

December 14th, 1854.

In January, 1855, Dr. Stone filed in the County Court his *707petition, praying that the will should be admitted to probate, and that letters of administration, with the will annexed, might be granted to him. At the same time he filed an application for letters of guardianship over the minors, John B. and Charles N. Spillman, claiming such guardianship by virtue of the devises in the will of their deceased father. Notice was given, as the law directs, in both casos. The application of Stone was opposed, as well in the case which claimed probate of the will and letters testamentary, (or, as it is styled in the proceedings, letters of administration with the will annexed,) as in the application for letters of guardianship. At the February Term, 1855, of the County Court, judgment was given in both causes ; on the first, establishing the paper as a will, and admitting it to probate and record, but refusing to recognize Stone as executor under the will, or grant him letters of administration with the will annexed, but granting the same to Amanda D. Brown, having first revoked letters of administration which had been issued to the said Amanda at the previous or January Term of the County Court. In the second cause, judgment was given against Stone, refusing the prayer of his petition for letters of guardianship. The judgments in both of these causes were afterwards, in June, 1855, on appeal, aErmed in the District Court. From these judgments there were appeals to the Supreme Court, but, unfortunately, the transcript in bu t one of them was filed at the last Term, viz: the transcript of the record and judgment in the cause which, though it established the will, yet refused its administration to Stone, and this has involved the necessity of bringing up now, on the part of Stone, by writ of error, this judgment refusing letters of guardianship to the said Stone.

The first cause, brought up at the last Term of this Court, was decided at that Term, and a glance at the Opinion then pronounced, will show that the only question involved, or now insisted upon, in this record, was then, in effect, considered and definitively adjudged. The judgment in the case now in *708hand shows, by its recitals, that the ground of objection to Stone, and on which the court rested its decision, was that he had disqualified himself by improper interference and inter-meddling with the estate and property of the minors ; or, in other words, that he had intermeddled with the property prior to the issue of letters of guardianship. Now, one of the grounds of objection to the grant of administration with the will annexed, to Stone, was that he was disqualified by his intermeddling with the estate, to be such administrator. And in the plea in which this is set up in the first cause, it is added by the parties in opposition, that they object to said Stone being appointed guardian because he has disqualified himself as such guardian by acts of intermeddling with the estate. In fact the grounds of objection in both suits were substantially the same, viz : That the paper offered by Stone was no will, and if it were, that Dr. Stone had, by his intermeddling, disqualified himself for receiving either the appointment of administrator or guardian. The paper offered by Stone was established as a will in all the Courts ; and by the Supreme Court, in substance, it was held in the former case, that the acts done by Stone, under the circumstances, viz : the unlimited confidence of the testator, the delivery of the keys to Stone, the request to take immediate possession of the house and effects of the deceased, at his death, did not amount to such intermeddling with the estate as should disqualify him from receiving letters testamentary ; and the judgment of the County and District Courts, refusing such letters, were declared erroneous and were reversed.

If the intermeddling was not of such character as to disqualify Stone for the appointment of administrator, or rather from receiving letters testamentary, certainly they could operate to no such disqualification as to exclude him from being appointed as guardian. It must be recollected that Stone does not derive his authority to administer the estate or act as guardian for the minors, solely from the grant of power by the *709County Court. He derives his authority, both as executor and as guardian, from the "will of the deceased. The only default chargeable to Stone is, that he attempted to perform some of the acts enjoined upon him by the will, without first applying • for letters testamentary, giving bond, &c. For if he had received such grant, (and we have decided that he was entitled to it by law,) he would have required no order of the County Court to enable him to collect the one hundred dollar debt due the estate, or to have sold the cattle, horses or hogs. These, under the circumstances, might justly be regarded as perishable property, and as such he was authorised to sell them by the express directions of the will. (Hart. Dig. Art. 1173.) The language of the will is earnest and emphatic. The injunction is positive, that the perishable property shall be sold. The facts in evidence show that such was the wish of the testator, and they also show that the only injury suffered by the estate was from the fact that the sale was not made at an earlier day. The sale was in about three weeks after the death of the testator, and even then but three of a“ tolerable good stock of hogs” could be found.

Dr. Stone had been advised by his legal counsel to take possession of the effects, and pursue the course touching them, requested by the deceased, and that when the will would be probated all would be right; and when he sold the cattle he informed the purchaser that he had no doubt the Court, when informed of the facts, would ratify the sale. It does not appear from the evidence, that Stone intended to embezzle the property, or to act in contempt and defiance of the authority of the Court, but only to make such disposition, in conformity with the directions of the will, as would be most beneficial to the estate. And if the act of sale was really con servative, if the estate would have suffered loss, had the sale not then been made, certainly the sale was no ground on which letters testamentary could have been refused, and especially when it is considered that, where a sale is directed by will, no *710order from the County Court is necessary, to make such sale. It is admitted that an executor tiiust give bond with security, unless otherwise directed by the testator,- (Hart. Dig. Art. 1130,) and where he performs acts prior to the issuance of the letters testamentary, they should be closely scrutinized ; but they must be clearly acts of malfeasance, before they can operate to defeat the wishes of the deceased, to exclude him who has been nominated by the testator, with the hope and confiding trust, that he would carry into effect the solemn behests of his last will, and to confer this oEce upon a stranger, and one perhaps who was distrusted by the deceased.

Had there been no will, had the power of administration on the estate been derived solely from the Probate Court, it is believed that the mere fact of intermeddling with the estate, before the grant of administration would not, of itself, be suEcient ground for the refusal of letters to a person otherwise entitled. At least a grant, if made, could not be objected to on the ground that the administrator had been acting previously as executor in his own wrotig. (1 Williams on Ex’ors. 221; 15 Mass. 322, 325; 8 Johns. 126.)

But it may be said that though intermeddling with an estate is not good ground for refusing letters testamentary to an executor, yet the rule does not hold as to letters to testamentary guardians, who are in effect prohibited from interfering with the estate of the minors until they qualify and receive letters of guardianship. (Hart. Dig. Art. 1572.) What is the intention of this provision, requiring bond and security from a testamentary guardian ? Clearly for the benefit of the minor, and to supply a defect in the provisions of the Statute of Charles the Second, which first introduced testamentary guardians in the Common Law system, who, under that Statute, were not required to give bond and security as a condition precedent to their assumption of guardianship. There is no penalty attached to the interference, and certainly the Court is not, by construction, authorized to attach a consequence which would *711defeat the whole object of the Statute ; and that is, to authorize a father, by will, to appoint a guardian for his children.

The painful, earnest solicitude of the father, in this case, that Stone should be the guardian of his children, impresses itself strongly upon the mind, as well from the terms of the will itself, as by his wishes expressed to persons around him in his last illness. It appears also from an informal will executed some months previous to that time. Can these wishes, these injunctions be disregarded by a Court, simply because this guardian, this second parent, to whom was given the control of the property, the education, and, in a great measure, of the morals and habits of these children, did not, before entering on the discharge of his duties, comply with all the formalities requisite to give sanction and legal power to . his appointment ? The policy of the law authorizing fathers to appoint guardians for their children, the solemn trust bequeathed by the decedent to his surviving friend, forbid a construction which would defeat such policy, and render vain and ineffectual the hopes and the deliberate final choice of a father in his last illness. A testamentary guardian does not receive the appointment for his own benefit, but for that of the minor. If, like the guardian in chivalry, he received the profits of the estate for his own use, there would be some reason for his removal for slight defaults. But not so where the appointment is for the benefit of the minor, and where the object most cherished by the father, in making such appointment, may be defeated by his removal, or by refusal to issue him the necessary letters. This power, although operating to defeat the appointment, may be exercised by the Court in proper cases, but with caution and delicacy, and only where it is expressly authorized, or clearly and plainly implied, as where there has been waste, embezzlement, &c.

The intermeddling acts, as they are called, of Stone, ought not, on another ground, to be set up against the grant of the guardianship. Under the will he is both executor and guard*712ian. He holds the property more properly in his capacity as executor, until the estate is settled, than in that of guardian ; and if his interference was not sufficient to defeat his right to the letters testamentary, certainly it cannot be set up against the guardianship, which, as to the estate, does not go into active operation until after the property has been received and administered by the executor. At least, the estate of the guardian is subordinate to that of the executor, and. an act of intermeddling, which will not prevent the enjoyment of the latter, cannot be allowed to dfeeat the former.

We believe there was error in the decree of the County Coprt, which overruled the application of Enos Stone, for letters of guardianship of the persons and estates of the minors, John B. Spillman and Charles N. Spillman, the children of the testator,'James H. Spillman ; and that there was error in the judgment of the District Court, which affirmed the judgment of the County Court; and both judgments are reversed, and this cause is remanded to the District Court, with instructions to enter a judgment sustaining the application of the said Enos Stone for letters of guardianship over the persons and estate of the said minors, in conformity with the opinion- of this Court, and to certify the said judgment to the County Court for the observance of that Court.

Reversed and remanded.

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