Beakley v. Ford

185 S.W. 796, 123 Ark. 383, 1916 Ark. LEXIS 491

• Court: Supreme Court of Arkansas
• Decided: February 14, 1916
• Status: Published

Opinions

Wood, J.,

(after stating the facts). The appellant contends that the order of the probate court at its April term, 1912, directing the curator to purchase certain lands with the funds in his hands belonging to the minors and to take credit therefor in his 'settlement at the expiration of the term became a final order and after this order had been carried out by the curator of the estate, the probate court, iat a subsequent term, “was powerless to revoke, nullify or ignore its provisions,” and that inasmuch as this order directed the appellant to take credit for the sums expended thereunder that the probate court, at a subsequent term, erred in refusing to allow him credit for such expenditures on his final settlement, and that the judgment of the circuit court to the same effect, from which this appeal comes, was also erroneous.

The appellant contends that the order of the probate court at its April term, 1913, was within its jurisdiction under the Constitution of 1874 and section 3801 of Kirby’s Digest, citing Watson v. Henderson, 98 Ark. 63. Section 3801 of Kirby’s Digest provides:- “When it shall appear that it would be for the benefit of a ward ■that his real estate, or any part thereof, be sold or leased and the proceeds put on interest, or invested in productive stocks, or in other real estate, his guardian or curator may sell or lease the same accordingly upon obtaining an order for such sale or lease from the court of probate of the county in which such real estate, or the greater portion thereof, shall be situate. ”

The Constitution gives to probate courts “exclusive original jurisdiction in matters relative to * * * the estates- of deceased persons, * * * guardians and persons of unsound mind and their estates as is now vested in the circuit court, or may be hereafter prescribed by law.” -Const, of Ark., article 7, section 34.

-In Watson v. Henderson, supra, the question at issue was whether 'or not the chancery court had jurisdiction to order the sale of a minor’s land for reinvestment. In discussing that question it was shown that the Constitution of 1874 vested exclusive jurisdiction in the probate court to order a sale of a minor’s land for reinvestment. The question now under consideration was not before the court at all and it was not there decided that the probate court had jurisdiction to order the funds of an estate in the hands of a guardian or curator to be invested in real estate.

(1) This court, in numerous cases, has held that probate courts have “only such special and limited jurisdiction as is conferred upon .them by the Constitution and statutes, and can only exercise the powers expressly granted and such as are necessarily incident thereto.” Lewis v. Rutherford, 71 Ark. 218-220.

(2) There is no authority giving the probate court jurisdiction to order the guardian or curator to invest the funds of the estate of minors in his hands in real estate. Section 3801 of Kirby’s Digest, invoked by the appellant, does not confer any such authority. It authorizes the sale of real estate for reinvestment “when it shall appear that it would be for the benefit of the minor to do so.” And there are statutes authorizing guardians and curators to loan the money of minors under the conditions prescribed in those statutes. Kirby’s Digest, sections 3804 to 3806 inclusive.

(3) We have held that the probate court has no power, under its general jurisdiction, to order the lands of a minor to be exchanged for other lands, there being no statute conferring such power. Meyer v. Rousseau, 47 Ark. 460; McKinney v. McCullar, 95 Ark. 166; Gatlin v. Lafon, 95 Ark. 256.

The order of the probate court under review contains no recitals that would bring it within the exercise of the jurisdiction conferred upon it by the statute. The probate court having no such common law jurisdiction, and proceeding solely by virtue of statutory authority, its jurisdiction to exercise such authority must appear from the record and will not be presumed. Gibney v. Crawford, 51 Ark. 34; Hindman v. O’Connor, 54 Ark. 627-43; Morris v. Dooley, 59 Ark. 483-87; St. Louis, I. M. & S. Ry. Co. v. Dudgeon, 64 Ark. 108-10. See also Willis v. Bell, 86 Ark. 473.

It follows that the judgment of the circuit court is correct, and it is therefore affirmed.