Duval v. Chaudron

| Ala. | Jun 15, 1846

GOLDTHWAITE, J.

The general duty of a guardian, with relation to his ward’s estate, is to preserve the principal unimpaired, and to devota no more than the income for maintenance, education, &e. Our statute directs the guardian ■shall make application to the orphans’ court for the sale of the lands of the ward, when his personal estate, and the rents and profits of the real estate, are not sufficient for the maintenance and education. [Dig. 268, § 6.] Much of the jurisdiction formerly vested in chancery over the persons and ■estates of infants, is now, by various statutes conferred on the orphans’ court, but we apprehend this court can exercise such powers and authorities only, as are prescribed to it. On looking into the legislation on this subject, no act is found which gives the authority to render any decree by force of which the ward will become personally liabl'é to the guar-* dian, whether for monies expended for his use or otherwise* On principle it may be questioned if a court of chancery in the exercise of plenary jurisdiction over this subject, could thus bind the person of the ward. Conceding therefore that the orphans’ court now has the same jurisdiction to settle the accounts between the guardian and ward as a court oí chancery, it does not follow, that when a balance is ascertained to be due to the guardian, the ward can be made per-* sonally liable to him. The moral obligation to reimburse the guardian may be perfect or imperfect, but we think it cannot be enforced by a personal suit, unless the ward has admitted its legal obligation, by an express promise to pay. As to the right of reimbursement, out of the estate of the ward, before or after he becomes of full age, we express no opinion.

In the present case, the count of the declaration on which judgment is given, deduces a promise of the ward froñi his supposed legal liability to the guardian, from the fact that the account on which the claim arises, was audited and allowed by the orphans’ court after the defendant became of full age-. It is not stated, nor can we infer, that a promise in point of fact was ever made. For this reason the declaration is defective, and the demurrer should hate been sustained.

The question on the evidence is substantially the §áme, and need not be considered.

Judgment reversed, and if desired-, the cause will be remanded.