WASHINGTON BK. TR. CO. v. MAGEE

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Docket Number

No. 33903.

Judges

Anderson, J., delivered the opinion of the court.

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WASHINGTON BANK TRUST CO. v. MAGEE.

Hall Hall and Bernard Callendar, all of Columbia, and Ott Johnson and O.H. Carter, all of Franklinton, La., for appellant.

It is the position of the appellant that under the provisions of Section 1906 of the Mississippi Code of 1930 the appellant is entitled to be substituted as guardian of the minor ward in the Chancery Court of Walthall County, in lieu of appellee, the present guardian. The record shows that Dorothy Lee Toney was born in Washington Parish, Louisiana, and lived with her parents there until their death. Her domicile is that of her parents, undisputedly shown to have been Washington Parish, Louisiana. Appellee is evidently under the impression that the mere removal of the child to the State of Florida for visits with her half-brother and later with her half-sister changed the legal domicile of the child. That is certainly not true under our law. The child being an infant, she is incapable of choosing or changing her domicile, and the appellant having been appointed her tutor by a court of competent jurisdiction in the state wherein her parents had their domicile at the time of their deaths, the domicile of the ward is not changed by a mere removal of the child to another state from time to time to be with relatives of the ward.

17 Am. Jur. 629, Sec. 64; Wells v. Andrews et al., 60 Miss. 373; 19 C.J. 410-414, Secs. 25-30; Boyle v. Griffin, 36 So. 141, 84 Miss. 41; Moore v. Jones, 99 So. 437.

We desire to bring to the attention of the court the fact that the certificate of deposit in question is only a part of the estate of this minor. The record shows that this item is the only asset which could be administered in Mississippi by the appellee. On the other hand, the record shows that the minor owns a considerable estate in Washington Parish, Louisiana, which is being administered by the appellant as guardian.

Sec. 1906 of the Miss. Code was enacted to aid just such a situation as is presented by this record. Here are two different guardians, in two different states, seeking to administer the estate of the same minor. If the appellee should be permitted to continue as guardian in Walthall County, there would be a duplication of court costs, attorney's fees, and other expenses, and the estate of the minor would thus be subjected to needless burden and expense. On the other hand, if the prayer of appellant's petition should be granted, the appellant could qualify as guardian in Walthall County, effect collection of the bank deposit in question, and speedily and at a minimum of expense administer that part of the estate. Under Section 1907 of the 1930 Code the appellant could then file a final account in the Mississippi guardianship and consolidate the guardianship estates in one proceeding in Washington Parish, Louisiana. In this manner the estate of the minor could be preserved, costs of administration reduced, and the best interests of the minor thereby promoted.

Mounger Calhoun, of Tylertown, for appellee.

Appellee respectfully observes that the sole question for decision by the court in this case is an interpretation of the provisions of Section 1906 of the Mississippi Code of 1930.

As we view this case, the question presented by the application of the section to the facts in the case at bar is simply this: Was it the contemplation of the legislature that a guardian appointed by the court of a foreign state shall be entitled to be substituted in the State of Mississippi for a guardian appointed by the courts of this state prior to the appointment of the foreign guardian and after the foreign guardian has permitted the estate of the minor to suffer from years of neglect? In short, does the statute convey an arbitrary right to a foreign guardian to be substituted in lieu of the Mississippi guardian at any time regardless of the precedence of decrees of appointment and regardless of delay, neglect, or passage of time? Is the best interest of the estate of the minor concerned at all?

It appears from the record that the appellant here, the Louisiana guardian or "tutor," received its appointment as such by the Louisiana court on August 31, 1937. It was in possession of the certificate of deposit which controlled the administration of its ward's estate. The estate lay dormant and suffered loss of interest from neglect while the Washington Bank Trust Company sat as the dog in the manger until the year 1939, at which time it, at its leisure, brought the presence proceedings. Thus, the question arises that even though a foreign guardian is entitled to substitution under the quoted section, is it a right to be exercised at leisure and timely whim after the passage of years and the detriment of the estate of the minor?

The only case which we have been able to find which interprets the provisions of Section 1906 of the Mississippi Code of 1930 in the light of the present facts is the case of Moore v. Jones, 99 So. 437 (not officially reported). That case as reported does not present sufficient facts from which we might ascertain as to whether that case is controlling. It does not appear, however, from the brief report of that case or the holding of the court therein that the peculiar circumstances above mentioned in this case are precluded from discussion here.

Argued orally by Lee D. Hall, for appellant.

GUARDIAN AND WARD.

Where Louisiana bank was duly appointed "tutor" in Louisiana for a Louisiana minor, a little more than a month after the minor's uncle had been appointed as her guardian in Mississippi wherein the minor owned property, the Louisiana tutor offering to comply with the applicable Mississippi statute had right to displace the Mississippi guardian notwithstanding a delay of about a year and a half (Code 1930, sec. 1906).

"Tutor" is the Louisiana name for guardian.

Anderson, J., delivered the opinion of the court.

A minor, who is a resident of the State of Louisiana, has a guardian in that state, legally appointed under the laws thereof. The minor has property in this State, and a guardian legally appointed under the laws thereof. Question: Whether the Louisiana guardian is entitled to displace the Mississippi guardian and to the possession of the minor's property in this State. Under the facts of this case and the governing principles of law, we think that question must be answered in the affirmative. Dorothy Lee Tony is a minor and a resident of Washington Parish, Louisiana. She owned a time deposit certificate for $1,000 in the Tylertown Bank, located in Walthall County in this State. On July 26, 1937, the Chancery Court of Walthall County appointed her uncle, appellee, V.J. Magee, her guardian. On August 31, 1937, a little more than a month thereafter, appellant, Washington Bank Trust Company of Washington Parish, Louisiana, was duly appointed tutor for the minor (tutor being the Louisiana name for guardian). Thereafter, the Louisiana guardian acquired, under the laws of that state, possession of the time certificate of deposit referred to, and in February, 1939, filed its petition in the Chancery Court of Walthall County against the Mississippi guardian to remove him as such and to be substituted in his place. The Mississippi guardian answered, making his answer a cross-bill, and prayed for a decree for the possession of the certificate of deposit. In his answer, he denied some of the material allegations of the petition, but on the hearing the evidence showed the facts above stated.

The Mississippi guardian contends: (1) That under the law, the Louisiana guardian had no right to displace him; and (2) if such right existed, it had been forfeited by delay, the delay being about a year and a half. Section 1906 of the Code of 1930, and Moore v. Jones (Miss.), 33 So. 437 (not officially reported), and Wells v. Andrews, 60 Miss. 373, are an answer to the first contention. That section of the Code is in this language: "When any minor or idiot or lunatic or other person of unsound mind resides out of this state, but has property, real or personal, in this state, and a guardian has been appointed to such minor, idiot, or lunatic or other person of unsound mind in the state of his residence, such guardian shall be entitled to be appointed guardian of such non-resident minor or idiot or lunatic or other person of unsound mind, by the chancery court of the county in this state in which such property, or any part thereof, is situated, upon producing to such court the original letters of guardianship issued to such non-resident guardian, or a certified copy thereof, duly authenticated, and upon executing bond with sureties, as is required of other guardians." The Louisiana guardian offered to comply with this statute in all respects. In Moore v. Jones, supra, the Court held that the appointment of a guardian in this State of a non-resident ward other than the guardian appointed in the state of the ward's residence, although not void under the laws of this State, nevertheless, the guardian appointed in such other state was entitled to be substituted in lieu of the guardian appointed in this State.

We do not decide whether any dereliction of duty on the part of the Louisiana guardian would affect its right to displace the Mississippi guardian. That question is not involved, because, as we view it, there is no such failure of duty. Both guardians waited about a year and a half before any action was taken.

Reversed, and judgment here for appellant.

WASHINGTON BANK TRUST CO. v. MAGEE.

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