On Petition to Rehear. The Special Guardian has filed a very earnest petition to re-hear. The gist of this petition is to be found in the contention expressed as follows:
"That this case presents a simple matter of arithmetic, and that it can be worked out and does work itself out to a mathematical certainty; and that in all of its essentials presents no question of complexity of accounting. In other words, as we see the situation, this record presents no item over which any disagreement was had; it presents no question of contention — other than the questions of the legality of said investment and the jurisdiction of the Probate Court to pass upon that question under the circumstances and the state of the record in the Probate Court. Viewing it in this manner, are we not justified in asking: Does it not amount to the Probate Court passing upon the simple matters pertaining to the accounting *Page 524 which were involved the same as though they had been submitted upon an agreed stipulation of facts?
"Up to the time of the trial all of the aforementioned credits, which were many, were presented to the Probate Court and are entered in detail in the record of said proceeding. They have thus become definite and certain and when a final settlement is made by the guardian, and which settlement must be passed upon and approved by the Judge of the Probate Court, there remains only the mere matter of simple calculation."
We considered before the question thus indicated, and in deference to the earnestness with which it is pressed we have done so again. We have reached the same conclusion, notwithstanding the ingenious argument made in support of the contention. In the opinion formerly filed we summarized the rather lengthy decree. We think the nature of this proceeding could not be better demonstrated than by what appears in this summary. Under the authorities cited in the opinion, we can but conclude that the granting of the relief of the nature evidenced by the decree was beyond the jurisdiction of the Probate Court of Shelby County.
As we pointed out before, in order to grant this relief it was necessary for the Probate Judge to reopen the annual settlements of the Guardian's account, as filed with the Clerk and approved by an order of the Court pursuant to statutory provisions regulating this matter. We do not think the Probate Court had jurisdiction to do this. While such settlements are ex parte, they are required by statute and must be approved by the Court. By Code, section 9738, it is provided that such settlements are to be taken as prima facie correct. With respect to their nature, it was said in Matlock v. Rice, 6 Heisk., 33, 39, that a "settlement properly made in the County Court is not an idle form or a dead letter," and moreover, that "if made in the mode prescribed by law, they should not be disturbed, except upon clear and satisfactory evidence." We are convinced that only the Chancery Court has jurisdiction to entertain proceedings to go behind such settlements.
It is asserted that "this proceeding is in no sense an attempt to surcharge and falsify a final settlement of a Guardian." By the emphasis placed upon the word, "final" it is evidently sought to make a distinction between an annual settlement and a final settlement, with respect to the method by which they may be attacked. We think there is no such distinction, so far as that question is concerned, and that by virtue of Code, section 9738, above referred to, any settlement made by a Guardian pursuant to the requirements of law is to be taken as prima facie correct.
In Matlock v. Rice, supra, the proceeding was to surcharge and falsify the annual settlement of a Guardian and to require him to account and make final settlement, and this was what the Court had reference to in the above quotations from the opinion in that case. *Page 525
It is again very earnestly urged that the amendatory Act of 1935, chapter 179, authorizes a proceeding of this nature in the Probate Court of Shelby County and relief of the nature of that granted. We are convinced that the view of this question expressed in the original opinion is correct. As there indicated, we think that the authority of the Probate Court under that Act is limited to the ascertainment of the balance due the ward, asreflected by the records of the Court, including the settlements made by the Guardian, and that it is for a balance so ascertained that it may, upon notice, summarily award an execution. Compare: Bowers v. Lester, 2 Heisk. 456. As we have already said, we are not of the opinion that this statute conferred upon the Probate Court the power to reopen records theretofore properly made, and determine, upon proof, the balance due by the Guardian.
The jurisdictional question being determinative, the other questions are immaterial.
The result is that the petition to re-hear is denied at the cost of the petitioner.
Senter and Ketchum, JJ., concur.