Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 244
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214 SMYTHE V. LJUMPKIN [Tyler Term,
Opinion of the court.
of such guardianship shall be allowed." An attorney's fee for
prosecuting against a ward's estate an unfounded claim certainly
cannot be deemed an expense necessarily incurred in the management
of the guardianship.
It would seem that such claims should not stand on higher
grounds than ordinary costs, in reference to which the law regulating
guardianships declares that "In all cases where a party shall make
any application or opposition, and on the trial thereof he shall be
defeated, all costs occasioned by such application or opposition shall
be adjudged against such party by the court." R. S., 2703.
The court in the sixth conclusion of fact found that from September
1, 1881, the guardian had held as surplus funds of his ward's
estate the sum of $727.25, which he had neglected to loan, though
he might have done so by the use of reasonable diligence, and on
the facts, as matter of law, held that the guardian was only liable
for the principal sum and interest on it at the rate of eight per cent.
per annum from September 1, 1881, to May 31, 1884.
The statute declares: "If the surplus money in the hands of the
guardian belonging to the ward cannot be invested or loaned at interest
as directed in this chapter, after due diligence to do so by the
guardian, he shall be liable for the principal only of such money.
But if the guardian neglects to invest such money or loan the same
at interest when he could do so by the use of reasonable diligence,
he shall be liable for the principal and also for the highest legal rate
of interest upon such principal for the time he so neglects to invest
or loan the same." R. S., 2567. The highest legal rate of interest
under the laws of this state is twelve per cent. per annum.
The statute is imperative, and is intended to stimulate the diligence
of guardians and to secure in favor of wards a faithful ad-ministration
of their estates, and the courts have no power to
disregard its plain provisions.
The seventh finding of fact justified the conclusion of law made
upon it.
The court found, as a fact, that the guardian had expended money
in excess of the income of his ward's estate for the education and
maintenance of his ward, and that this was done without direction
of the county court for Anderson county (the court in which the
guardianship was pending), and without the direction of any other
court, but that the expenditure was not unreasonable, but on the
contrary proper and judicious, and therefore held that the guardian
was entitled to a credit for the sum thus expended.
The statute provides that: "The court may direct the guardian
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28512/m1/266/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .