
    Nora B. Hart and Husband v. Bianca Czapski et al.
    
    Chanceby Court Jubisdiction. Guardian and Ward. Nonresidents. The chancery court of the district in which a guardian has been appointed for infants, has jurisdiction upon the application of the guardian, to break into the principal of the estate of the infants for their benefit, where the estate whether consisting of realty or personalty, is placed under the control of the court, although the guardian and wards are non-residents of the State, and the latter made defendants by publication.
    PROM SHELBY.
    Appeal from the Chancery Court at'Memphis. ¥. W. McDowell, Ch.
    Randolph & McHenry for complainants.
    H. C. Warriner for defendants.
   Cooper, J.,

delivered the opinion of the court.

This bill, filed in the chancery court of Shelby county, was dismissed by the chancellor on motion, and complainants appealed.

Louis Czapski died in 1878 in Shelby county, of which county he was a resident citizen, leaving a widow, the complainant, Nora _ B., who has since intermarried with her co-complainant, A. "W. Hart, and four children. These children are defendants to the bill, and their ages at the filing of the bill ranged from four to thirteen years. The complainant, Nora B., was appointed by the probate court of Shelby county, the guardian of the children. The only estate of the infants consists of $5,000 invested in the first mortgage bonds of the Mississippi '& Tennessee Bail-road Company, a corporation of this State. These bonds have been since they became the property of the wards, and are now in the custody and under the control of the defendant, the Union and Planters Bank, a corporation of this State at Memphis. The income from these bonds is only $400, and insufficient, the bill alleges, for the support and education of the children. It is further alleged that the pecuniary condition of the complainants is not such as to enable them to supply the deficiency out of their own means. The object of the bill is to obtain the sanction of the court to a sale of one of the bonds for $1,000, and the appropriation of the proceeds to the maintenance and education of the children. The bill states that the complainants and the children are non-residents of the State, and residents of Bock county in the State of Iowa. And it asks that the children be made defendants by publication. The bill is sworn to.

Publication having been made, the chancellor appointed a guardian ad litem for the infants. The guardian thereupon moved the court to dismiss the bill because it shows that the regular guardian and the wards are non-residents of the State, and, the suit relating to personal property, does not give the court jurisdiction of such non-resident defendants.

The court of chancery, it is conceded, has power to break into the principal of an infant’s estate, or to authorize the guardian to do so, where the- fund is so small that the interest will not afford the means of a competent maintenance and education to the infant: Beeler v. Dunn, 3 Head, 88. It is equally conceded that the non-residence of the guardian and wards would be no obstacle to the relief sought if ihe court has in other respects acquired jurisdiction: McClelland v. McClelland, 7 Baxt., 210; Hickman v. Dudley, 2 Lea, 375; Stephens v. Jones, 1 M. & K., 627. The argument in support of the demurrer is that non-resident parties cannot be brought into court by publication unless there is something in the case to give the court jurisdiction independent of the publication. For, it is pertinently said, if it were otherwise, the present suit might be -brought in any county in the State. And the question therefore is whether there is anything to confer upon the chancery court of Shelby county the requisite jurisdiction.

The court of chancery in this State acts ordinarily.in personam, and suit may be instituted wherever a - material defendant is found, unless otherwise prescribed by law: Code, see. 4305. . But the Code does provide for the local jurisdiction of the court when the parties cannot be found within the limits of the judicial district. Among other things it provides that bills against non-residents, or persons whose names and residences are unknown, may be filed in the district in which the cause of action arose, or the act on which the suit is predicated was to be performed, or in which the subject of the suit or any material part thereof is: Code, sec. 4311, sub-sec. 4. The appointment of a general guardian of an infant by any of the probate courts of this State, and the qualification of the guardian by the execution of a bond and otherwise as prescribed by law, creates a relation between the guardian and ward, and obligations on the part of the guardian to the ward upon which causes of action necessarily arise, and under which acts and duties are to be performed. The court of chancery of the district of appointment would, by virtue of the statute, have jurisdiction of such cases. It is the duty of-the guardian to appropriate the estate of the ward to his. maintenance and education. The ward may clearly enforce the duty by action against the guardian, and the guardian may just as clearly administer the assets of the ward within the jurisdiction of the court under the orders of the court. The non-residency of the parties, as we have seen, offers no obstacle to the exercise of the jurisdiction.. It can make no difference whether the property of the ward, sought to be administered, is real or personal, nor whether it has always been within the local jurisdiction of the court,, or is brought there for the express purpose of conferring jurisdiction. All that is material is that it is-the property of the ward, and that it should be used for his benefit.

The decree must be reversed and the cause remanded for further proceedings. The costs of this, court will be paid by the complainant, and allowed as a credit in the settlement of the guardian.  