{
  "id": 1559366,
  "name": "Beakley v. Cunningham",
  "name_abbreviation": "Beakley v. Cunningham",
  "decision_date": "1915-12-20",
  "docket_number": "",
  "first_page": "457",
  "last_page": "460",
  "citations": [
    {
      "type": "official",
      "cite": "121 Ark. 457"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
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    {
      "cite": "38 Ark. 482",
      "category": "reporters:state",
      "reporter": "Ark.",
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    {
      "cite": "65 Ark. 419",
      "category": "reporters:state",
      "reporter": "Ark.",
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      "weight": 2,
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      "case_paths": [
        "/ark/65/0419-01"
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    {
      "cite": "50 Ark. 201",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        8721238
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      "case_paths": [
        "/ark/50/0201-01"
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  "last_updated": "2023-07-14T19:35:38.519565+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Beakley v. Cunningham."
    ],
    "opinions": [
      {
        "text": "Kirby, J.,\n(after stating the facts). The statute provides, section 1348, Kirby\u2019s Digest: \u201cAppeals may be taken to the circuit court from all final orders and judgments of the probate court at any time within twelve months after the rendition thereof by the party aggrieved filing an affidavit and prayer for appeal with the clerk of the probate court, and upon the filing of such affidavit, the court shall order an appeal at the term at which such judgment or order shall be rendered, or at any term held within twelve months thereof. \u2019 \u2019\nThe statute clearly authorizes the appeal to be taken at any time within twelve months after the rendition of the judgment appealed from, and provides that upon the filing of the affidavit prescribed, the court shall order an appeal at the term at which the judgment or order was rendered, if the affidavit was then filed, or at any term within twelve months thereof.\nThis last expression does not have effect to extend the time for taking the appeal beyond twelve months from the rendition of the judgment, although it permits the order to be made at any subsequent term of court, provided it is made within said twelve months after the rendition of the judgment.\nThe order not having been made granting the appeal until more than twelve months after the rendition of the judgment, it was properly dismissed.\nThe statute provides, section 3828, Kirby\u2019s Digest: \u201cGuardians and curators shall receive such compensation for their services as the court shall decide to be just 'and reasonable. \u2019 \u2019\nThe probate court found that the guardian\u2019s conduct of the management of the estate of his wards was such as to require his removal, and removed him. The record shows that he had not filed 'an inventory of the estate; that he did not file separate accounts with each of his wards; that he failed to file an account for 1912; permitted the lands of his wards to sell for taxes, necessitating of course, their redemption from such sale for their protection, \u2019and that he also failed to pay a certain allowance \u00a1made by the court for the support of the minors.\nThere is no showing made of any .service rendered that would entitle him to further compensation and both the probate .and circuit court, having found he was entitled only to commissions upon the amounts paid out by 'him as guardian, and not upon the .amount paid over upon final settlement .after his removal, the judgment will be affirmed. Stanley v. Deihough, 50 Ark. 201. It is so ordered.",
        "type": "majority",
        "author": "Kirby, J.,"
      }
    ],
    "attorneys": [
      "E. L. Ponder, for appellants. .",
      "Cunningham & Blaclcford, for appellees."
    ],
    "corrections": "",
    "head_matter": "Beakley v. Cunningham.\nOpinion delivered December 20, 1915.\n1. Probate courts \u2014 appeals\u2014how taken. \u2014 An. appeal, under Kirby\u2019s Digest, i\u00a7 1348, may be taken from a final order of the probate court, at iany time within twelve months after the rendition of the judgment appealed from, and upon the filing of the prescribed , affidavit, the court shall order an appeal at the term at which the judgment or order was rendered if the affidavit was then filed, or at any term within twelve months thereof.\n2. Appeal prom probate court \u2014 order\u2014time op rendition. \u2014 An order granting an appeal from the probate to the circuit court, not having been made until more than .twelve months after the rendition of the judgment, should be dismissed.\n8. Guardian and ward \u2014 commissions\u2014finding,op court \u2014 neglect.\u2014 A guardian who is found hy both the probate and circuit courts to have been derelict in the discharge of bis duties, and who has been removed, may claim commissions only upon amounts paid out by him as guardian, and not upon the amount paid over upon final settlement after his removal.\nAppeal from Lawrence Circuit Court; Dene H. Coleman, Judge;\naffirmed.\nSTATEMENT BY THE COURT.\nThis appeal is in effect to test the validity of an order of removal of \u00a1a guardian by the probate court and disallowance of his commission upon the final settlement and statement of his account.\nProceedings were instituted in the probate court for the removal of the guardian and the settlement of his accounts, it being alleged that he had. failed to file an inventory of the estate in the beginning; that his settlement filed in November, 1911, showed a lower amount than the correct balance due because of a certain error and overcharge in commissions claimed; that he had failed to pay the petitioner the amount allowed him by the court for the support of the wards; that he had filed no account or settlement for the year 1912 and had allowed the lands of his wards to be forfeited and sold for taxes in 1913.\nThe guardian was cited at the next term of court to appear and show why he should not be removed, and failing to appear upon that day he was removed as guardian, and directed to make a full settlement of his accounts and guardianship on the first day of the succeeding April term of court. He filed his final settlement in April, which was continued until July, 1914, when his account was restated and he was found to be due his wards the sum of $1,124.66, .and certain commissions claimed by him were disallowed.\nThe order of removal of the guardian was made on the 10th day of January, 1914, .and on the 3d. day of August, 1914, he filed an affidavit for an appeal from both of said orders. On the 20th day of January, 1915, the appeal was prayed and granted to the circuit court .and a motion was made to dismiss the appeal from the order removing Beakley as guardian because it had not been taken within the time allowed by statute. This motion wias sustained .and the appeal dismissed on the 16th of March and on the 19th, the court, upon a hearing held that the guardian should be allowed commissions only upon the .amount of money paid out for the benefit of his wards, and affirmed the judgment of the probate court and .an appeal has been prosecuted from both said judgments.\nE. L. Ponder, for appellants. .\n1. The appeal was taken and perfected within the time provided by law. Kirby\u2019s Digest, \u00a7 1348; 65 Ark. 419.\n2. A guardian appointed by will can not be removed in the manner attempted. Kirby\u2019s Dig., \u00a7 \u00a7 3763-3764.\n3. Beakley, if removed, is entitled to commissions on the amount to be paid over to the guardian in succession. Kirby\u2019s Digest, \u00a7 3828; 21 Cyc. 175-6.\nCunningham & Blaclcford, for appellees.\n1. The probate court had power to remove.\n2. There was no error in dismissing the appeal. 65 Ark. 419.\n3. The removed guardian was not entitled to the commission claimed. He had clearly failed to comply with the law. Our statute clearly leaves it within the .sound discretion of the court to allow a guardian compensation for his services. Kirby\u2019s Digest, \u00a7 3784; 38 Ark. 482."
  },
  "file_name": "0457-01",
  "first_page_order": 481,
  "last_page_order": 484
}