55 So. 127 | Ala. | 1911
Terry J. Toole having been duly adjudged insane and committed to the insane hospital, three of his relatives separately filed petitions in the probate court asking for letters of guardianship. Two of these applicants are nephews and one of them is the sister of the non compos, whose estate, consisting almost entirely of land, is represented and shown to be worth about $120,000, incumbered, however, with judgments, mortgages, and other charges aggregating about $40,000. The court properly heard the several applica.tions all together, and upon the testimony adduced he decided that one of the nephews, Prank D. Kohn, was entitled to letters of guardianship, and ordered and decreed accordingly, at the same time denying the petitions of the other nephew and of the sister, Mrs. Annie U. Boylan. Prom this decree, Mrs. Boylan prosecutes this appeal, asking that the letters issued to appellee be revoked, and that a decree be here rendered for her in accordance with the prayer of her petition.
Section 4359, Code 1907, is: “If there are two or more applicants for the guardianship of a person of- unsound mind, the court must prefer that person wlm is of nearest relationship, and will, in the judgment of the court, best manage the estate of the ward.” This has been the form of the statute since the Code of 1886. In the Codes of 1867 (section 2452) and 1876 (section 2756) the statute read: “In cases where there are two or more applications for letters of guardianship, by persons equally related, he must appoint that person
A determination of the merits of the conflicting claims of the two applicants for letters of guardianship depends in a large measure upon the construction which must be given to section 4359 of the Code. The appellant (the sister) insists that the statute leaves in . the court no discretion as between relatives of different degree, but is mandatory in favor of the nearest relative, if that relative be fit and competent, regardless of the superior qualifications of any other applicant whose relationship is more remote; in other words, that the only discretion the court can exercise is in choosing
We are clearly of the opinion that both of these theories of the statute are erroneous. Its language could only have been intended to 'fix in favor of the nearest relative a preference already recognized by the courts in practice, but which was the outgrowth of an original discretion, by which is meant a liberal judicial discretion, subject to revision on appeal only in cases of manifest abuse. But, while the statute thus creates what may be termed a right in favor of the nearest relative, it is a strictly qualified and subordinate right. The paramount consideration of the law has always been the best interests of the ward and of his estate, and this is peculiarly the case in respect to the selection of his guardian. And when the law declares a preference in favor of any class of persons, it is only because of the assumption, sanctioned by the laws of
In the case of infants, since the laws of nature as well as of society commit their custody and nurture to their parents, it is deemed important for. obvious reasons that parents should be preferred as guardians also for their children’s estates. And hence our statute provides that the “father, if a suitable cwvd proper person, and willing to give bond and qualify as guardian, is entitled to a preference.” — Code, § 4339. It will be observed that in this single instance the best management of the estate is subordinated to other interests, and the only test applied is general fitness for the care of the infant’s estate. But, in dealing with guardianships other than a father’s, what is the language employed? The statute is: “If there be two or more applicants for the guardianship of a minor, the judge of probate must prefer that person who is of nearest relationship, and will, in the opinion of the judge, best manage the estate of the. Avard.” — Code, 4342. This statute, though slightly variant in phraseology, is identical in meaning and effect with its congener, section 4359. The change in the language indicative of the test which the court is to.apply in giving effect to the preference in favor of
We therefore hold that, under section 4359 of the Code, it is the duty of the prohate court to appoint as guardian that applicant, if suitable and proper, who is nearest of kin, provided he can best manage the estate; but, if in the judgment of the court another applicant, though of remoter relationship, can best manage the estate, he should he appointed in preference to any other, and, if none of the relatives applying are suitable and proper persons, then the court may and should reject them all, and appoint the general guardian of the county, or the sheriff, as prescribed by section 4360.
We further hold that from such a decree an appeal lies to this court under section 2837 of the Code, and that this court will review the action of the probate court in the selection and appointment of such guardian; but, its action in this regard resting in-a sound judicial discretion, it will not he disturbed by this court unless the record shows a manifest abuse of that discretion.
It appears from the evidence in the record that the estate here concerned is one of considerable magnitude and value, and that its future prospects are complicated by the existence of burdens in the way of mortgages and other lien charges upon it to the extent of about one-third of its value. It includes about 400 acres of farm lands, and, in view of the exigencies of its proper care and management, as well as of the fiscal problems that harass and perhaps threaten the integrity and safety of the estate, the probate judge was no doubt decisively influenced in his choice, not only by
Without determining whether, in the exercise of his judgment in such a matter as this, the probate judge is confined exclusively to the information which petitioners may choose to present to him through their witnesses, and, without undertaking -to pass upon the absolute weight of the evidence before us, we are convinced that there has been no abuse of its discretion by the probate court, and that its action ought not to be disturbed.
Affirmed.