Beasley v. Watson

41 Ala. 234 | Ala. | 1867

JUDGE, J.

It was one of the guardian’s ordinary duties, to invest the surplus funds of his ward, and make interest thereon, if practicable.—Code, § 2024; Allen v. Martin, 36 Ala. 330. We think it sufficiently appears, from the evidence adduced on the final settlement, that the nine hundred dollars loaned by the guardian to Jonathan Thomas, belonged to the estates of his two wards, Jane and Columbiana Williams. The guardian so declared at the time of the loan; and this declaration, accompanying the act, and explanatory of it, was competent evidence as a part of the act itself. The truth of the declaration is shown by the fact, that the note taken at the time for the money loaned was made payable to the appellee as guardian, who, as the evidence showed, was guardian for none other than the wards named, was a farmer in moderate circumstances, and had no money of his own to lend.

2. The money due on this note was collected by the guardian, after one renewal thereof, in Confederate States treasury-notes. It was collected “ in the early part of 1864;" and on the fifth of March of the same year, nine hundred dollars of the same currency were deposited by the guardian in the Confederate States “ Depository Office,” at Eufaula, to be funded in Confederate States four-percent. bonds. A certificate of deposit was taken by the guardian in his own name as an individual, and not as guardian. This certificate, we think, the court properly received as evidence. The facts in evidence, in the absence of countervailing proof, authorized the conclusion, that the currency deposited for the certificate, belonged, not to the guardian, but to his two wards; and this it was competent to show by parol evidence, in connection with the certificate. Bank v. Coleman, 20 Ala. 140; McTyer v. Steele, 26 Ala. 487; McQuire v. Russell, at the present term.

3. The failure of the guardian to report the four-percent. certificate to the court within sixty days after it had been received, in conformity to the requirements of the statute, even if no sufficient excuse existed for the failure, furnishes no predicate for a charge against the guardian on account thereof, unless the ward’s estate was injured thereby, which does not appear. This point was expressly so ruled by this court, in Dockery v. McDowell, at the January term, 1867. The circumstance of his failure to charge himself, in his account as first made out, with the usurious interest he had collected on the loan of the money of his ward, was not evidence of a general fraudulent intent in his management of the estate. This omission may have been the result of inadvertence, especially as the evidence shows he was a man of but little intelligence. On the authority of several adjudicated cases of this court, made at the last term, we hold that the probate court committed no error in allowing the credit for one half of the four-percent. certificate ; the other half being the property of the other ward of the guardian. In Watson and Wife v. Stone, decided at the January term, 1867, this subject is fully considered, and elaborately discussed. See also, Dockery v. McDowell, and Neilson v. Cook, decided at the same term. Whether the Confederate States treasury-notes, with which the certificate was procured, were funded for the benefit of the ward’s estate or not, still, being property of her estate, if they had been retained by the guardian, they would have been as valueless as the certificates; and as the court below properly decided, the guardian should not have been charged therewith.

4. A father is bound, by the common law, to support and educate his children during their minority ; but, when he has not the ability to do so, according to their station in life, assistance will be granted him from the private estate of the children.—Watts v. Steele, 19 Ala. 656; Pharis v. Leachman, 20 Ala. 662 ; Alston v. Alston, 34 Ala. 15. In the case last cited it was held, that in determining the question of the father’s ability, it is proper to consider the amount of Ms estate, the number of his children, the condition of his family, his expenses and income, and the amount of his children’s fortune.

It appears from the record in this case, that the father testified, as a witness for the ward, that he was well able to maintain and educate his children, independent of their own estate, in a manner suitable to their condition and circumstances in life, during the whole of the time for which board was paid him by the guardian. But, notwithstanding this conclusion of the witness, as to his ability to support and educate his children, the character of the property constituting his estate, as described by himself, shows that his income could not have been otherwise than very limited; and his necessities, doubtless, prompted him to demand payment for the board of the ward, as he was proved to have done. He had a large family of white and black children together, who were unable to contribute much, if anything, towards their own support; and considering the amount of the ward’s estate at the time, we think it just and equitable that it should have been charged, to some extent, with her own maintenance and support. We cannot say the effect of the rulings of the probate court, on this question, was to charge her estate, for this purpose, to a greater extent, than was proper under all the circumstances; and the action of the court, in allowing the credits referred to, comes, we think, within the rule laid down on the subject in the case of Alston v. Alston, supra.

Decree affirmed.

Byrd, J., dissented on the question decided as to the allowance of the credit on account of the four-per-cent certificate, and declared that he would hereafter give the reasons for his dissent, in some case now before the court.