39 Ala. 150 | Ala. | 1863
The account of Gideon B. Fri-erson, as guardian of Elias F. Travis, the appellee, was adjudicated by a decree of the probate court on the 24th October, 1853. We are to decide whether that decree is void. Its validity is impeached, upon the ground that the ward was an indispensable party to the proceeding, and was not in any legal mode made a party.
In proceedings before the probate court, for settlement of the accounts of executors and administrators, notice may be given through a newspaper published in the county; and if there be no newspaper in the county, by advertisement posted at the court-horrse and three other public places in the county.- — -Code, § 1805. This regulation is applicable to the'settlements of guardians. — Code, § 2039 ; Allen v. Martin, 34 Ala. 442; S. C., 36 Ala. 330. Therefore, notice may be given of the settlement of a guardian’s account, by advertisement, posted up at the ^court-house and three other public places, when no newspaper is published in the county¡
At the commencement of the proceedings for the settlement of the guardian’s account, it was ordered by the court, that notice should “be given by written advertisements^ set up at the courthouse-door, for three successive weeks.” In the decree it is recited, that the prescribed notice had been given; and that fact, together with the failure of the guardian ad litem, to maker objection to the guardian’s accounts and vouchers, is set forth as the ground upon which the decree is based. It is an unavoidable inference from what we have stated, that no personal notice,* was given to the ward, that no notice in a newspaper was^given, and that no notice was either posted, or ordered to be posted, at three other public places in the county besides the court-house.
On the 21st September, 1853, the probate court made an order that G. W. Jennings be appointed guardian ad litem, and that notice issue to him. ' On the 24th October, 1853, it is recited in the order of the court, that the notice previously required was given; that the guardian ad litem was present, and made no objections to the accounts and vouchers ; and that, therefore, they were allowed. These recitals, which contain everything pertaining to the subject, fail to show, or authorize the inference, that the guardian accepted the appointment. They do show that he was present; but he may have been present, without consenting to the appointment. And if we resort to speculation, it could be more reasonably argued, that ‘
To make up the representation of an infant by a guardian, there must be an express assent by him to the appointment, or there must be some action by him denoting his assent.— Greenup v. Bacon, 1 Monroe, 108; Shaefer v. Gates, 2 B. Monroe, 453 ; Bustard v. Gates, 4 Dana, 429; Banta v. Calhoun, 2 A. K. Mar. 166; Benningfield v. Reed & Sutherland, 8 B. Mon. 102; Bank of the U. S. v. Cockran, 9 Dana, 395; Daniel v. Hannagan, 5 J. J. Mar. 48 ; Doe, ex dem. Duval's Heirs v. McLoskey, 1 Ala. 708-726; Smith v. Smith, 21 Ala 761; Cato v. Easley, 2 St. 214. The infant can not be bound by the acts of a guardian ad litem, until the responsibility of the office is imposed; and this can not be until he accepts the appointment.
We agree that, when the validity of a decree of the probate court is assailed collaterally, its language should be construed most favorably to the maintenance of the jurisdiction.— Jemison v. Smith, 37 Ala.; King v. Kent, 31 Ala. 542. But the court can not add to the language of the record, and, under the pretense of interpretation, incorporate a new fact. The presence of the guardian ad litem does not imply an assent to his appointment, and the fact of such presence can not in any way embrace the idea of an acceptance of the office.
The question of the presumption of notice, when the record is silent upon the subject, was discussed by Judge StoNE in the case of Hunt v. Ellison, 32 Ala. 193. But, whatever may be the doctrine upon that subject, the presumption of a fact can not be indulged as an excuse for the want of notice, when it affirmatively appears that no notice was in fact given. If the iécord affirmatively discloses that
The decree of the probate court was made in the absence of jurisdiction over the person of the infant, and was, therefore, void.
No error in the taking of the account has been pointed out to us, and we have detected no error therein prejudicial to the appellant.
The decree of the chancery court is affirmed.