103 Ala. 404 | Ala. | 1893
In 1884 Mrs. Ella F. Reese died, testate,
It is insisted that, under the peculiar circumstances, the dual relation of complainant, as administrator and guardian, creates an obstacle to the proper exercise of the jurisdiction of the probate court to do complete justice in the settlement of these trusts, for the reason that the offices of administrator and guardian had terminated,
Disposed of, as the bill was by the chancellor, it-must be taken as sufficiently showing that the father of the wards was unable or refused to support them and unable to reimburse complainant; that the income of their estate and corpus of the personal property were insufficient ; and that it was necessary to their maintenance and education, and for their best interests, that the real estate, or some portion thereof, be sold for that purpose; in other words, such a state of facts, as that an order of sale would have been granted for the purposes mentioned, if applied for in advance of the expenditures.
It is a general rule that a guardian, or other fiduciary, having the control of infants’ estates will not be permitted to use the corpus or principal of the estate in the support of the wards. He is, as a general rule, confined to the income. On application to the proper court, however, showing urgent need therefor, considering the best interests of the wards, the court will direct the application of such portion of the principal to that use as it deems proper ; and, if necessary, will order real estate to be sold for the purpose. Our statutes, long ago, provided for such an appropriation of both personal and real estate. Section 2780 of the of Code 1876 reads as follows : “When upon the representation in writing of the guardian of a minor, it is made to appear to the satisfaction of the• probate judge that the rents and profits' of the estate of the ward are insufficient for his maintenance and education, the judge of probate may direct a sale of such portion of the estate, real and personal, of the ward as may be necessary for that purpose.” In some jurisdictions, the rule is adhered to, that the guardian, to justify expenditures of the principal, and claim reimbursement, must obtain the proper order in advance ; denying him indemnity, although the conditions were such as that the necessary order would have been grant
Reversed and remanded,