Roseborough v. Roseborough

62 Tenn. 314

• Court: Tennessee Supreme Court
• Decided: December 15, 1874
• Status: Published

Opinion

Freeman, J.,

delivered the opinion of the Court.

This is an application on the part of complainant, as guardian of his sister, the defendant, who is a lunatic, for the sale of a remainder interest in land, to pay expenses incurred by him in keeping her at the Hospital for the Insane, at Nashville.

It is already shown that the money was paid by complainant; that it was necessary and proper for her comfort that she should be in the hospital; and that the amount reported by the Clerk had been expended, over and above the assets, by the guardian. The Chancellor held, that the guardian had no power to break in on the corpus of the fund. The same rules apply in this- case, as. in other guardians and trustees holding such funds. We have held, in at least two cases, that, while the guardian had no power' to break in on the corpus of the fund, yet when he was called on to account in a Court of Chancery, he would be allowed such necessary and proper expenditure, if clearly made out, as a Court of Chancery would have ordered, if applied to in the first instance.

The principle of the rule will equally apply in a case where a party comes and asks an approval and confirmation of his action by the Court, as in this case. We think the case clearly made out, the expenditures proper, and the fund should be appropriated, as far as it will go, to reimbursement of complainant. A decree will be drawn to this effect, he paying costs of this and Court below.