58 Ala. 343 | Ala. | 1877
“In the settlement of the accounts of guardians, and in all the preparatory proceedings thereto, and appeals therefrom,-the law providing for the settlement .of the accounts of executors and administrators in this Code, and appeals therefrom, so far as applicable, and not in hostility with any provision of this chapter, applies to, and is in full force as to guardians and their sureties.” — Code of 1876, § 2793.
“ The court must appoint a competent person to represent the interest of minors and persons of unsound mind, interested in such settlement.” — Ib. § 2510.
The reason why a guardian ad litem must be appointed and assigned to represent the infant, or infants, in such settlement, is very obvious. Without such appointment and representation, important interests of persons not sui juris, would be heard and determined, with no one of discreet years to guard their interests. The issue, in such case, is between the personal representative or guardian on the one hand, and a minor, helpless in contemplation of law, on the other. Legislative wisdom has ordained that this unequal contest shall not be tolerated; and hence a discreet person of mature age is required to be appointed, to see that justice is meted out to minors and persons non compos mentis.
The issue and settlement in the present case was between Eellows, the resigned guardian, and Echols, brother of the ward, chosen by her, and appointed by the court, to be her guardian. It was in no just sense a settlement between the guardian and his ward. It was a settlement between the outgoing guardian and bis incoming successor. The new guardian having notice, it was his duty to see that his predecessor was brought to a fair and full account, as it was his duty to possess himself of all the estate and effects of his ward. There was no use for a guardian ad litem ; for her proper guardian was there, whose interest and watchfulness would be more keenly alive than those of a mere guardian ad litem could be supposed to be. In settling such an issue,
In Smith v. Smith, 21 Ala. 761, this court said: “ The record recites that on the day and at the term appointed for the final settlement of the estate, the administrators appeared and presented their accounts; which are shown to have been previously reported and filed for settlement; and, also, that the guardian of the minor heirs appeared. These recitals are conclusive, as to the fact of the appearance of the minor heirs by their guardian; and as this legal appearance would dispense with the necessity of notice, the real question is, whether the minors, who are interested in the distribution of an estate, can properly be represented on its final settlement by their general guardian. . . It is unnecessary to cite authorities to sustain the position, that, in general, the appearance of an infant by such a guardian is good ; and we think, also, that generally speaking, he feels a higher degree of responsibility in protecting the rights and interests of the wrard, than the guardian ad litem appointed by the court, who seems usually to consider his duties as limited to a denial of all matters which may affect the rights of the ward, without resorting to any positive or active measures to secure them. It is true, that when the general guardian is an incompetent or unfit person to represent the infant, it would unquestionably be the duty of the court to appoint a suitable person guardian ad litem; but in those cases in which the general guardian does appear, and is recognized by the court as the representative of the minor, we can perceive no good reason why the appearance should not be sustained.”
So in Morgan v. Morgan, 35 Ala. 303, this court ruled that, “ on the final settlement of an estate, an infant distributee may be represented by his general guardian; but if there be no general guardian, or if, after being notified, he fails to attend, it is the duty of the court to appoint a guardian ad litem?' See, also, Hives v. Minn, 47 Ala. 481.
It is shown in the present record that Echols, the duly appointed general guardian of complainant, did appear; and that he examined and approved the accounts and the settlement. Advertisement was waived, to save expense. We perceive nothing in this which does not merit and receive our hearty approval. We hold that the final settlement made was in all respects regular, and that it is conclusive, unless assailed for fraiid, or on some other equitable ground, not pretended or attempted in this record. We fully concur with the chancellor in commending the fidelity with which this trust was executed.
1863, August 7. “ Confederate bonds from Lewis Davis, $2,000.” This item entered into the credit column, and produced the aggregate of credits, $6,192.07. This item omitted, the credit column would foot $4,192.07. In the debit side of that account is charged against Fellows, July 17, “ From proceeds of sale of house and lot in Selma, his interest being one-fourth, $3,024.65. 15th January, 1864, coupons on $2,000 of Confederate bonds, $80 — -—■—.” Total, $3,104.65. This sum, taken from gross debits, $6,192.07, will leave $3,087.42, as the total debits with which Fellows should have been charged. Subtracted from total credits, $4,192.07, leaves a surplus of credits over debits of $1,104.65, with which Fellows was improperly charged on his final settlement with his successor. But why take these two items from the debit account? The Confederate bonds, $2,000, being rejected as a credit, of course the interest realized on them, $80, should be rejected as a debit. The item, $3,024.65, was the one-fourth interest belonging to complainant, realized from the sale of lot in Selma. The record shows that, after the war, she repudiated this sale as not binding on her, and recovered the value of her. one-fourth interest, $2,000, in lawful money of the United States. She thus realized for her fourth interest in this lot its value in lawful money, and $1,104.65, excess of collections made from Fellows in his settlement. And the testimony shows that the $2,000 invested in the Confederate bonds purchased from Lewis Davis, were part of the money derived from the illegal sale of the Selma lot, which complainant repudiated, and thereby not only prevented it from injuring her, but disarmed herself from complaining of Fellows for its illegal investment. She can not be heard to renounce the sale, and hold Fellows accountable, at the same time, for improvidence in investing its products. She can not, at one and the same time, claim under and against the sale.
We have indulged in the reflections shown above, not because the question is legitimately before us in this case. It is not; for Fellows bad made a lawful settlement, and was discharged. Our purpose is to show that even if we could go behind that settlement, Mr. Fellows could not be held accountable for the $2,000 invested in Confederate bonds.— See Horn v. Lockhart, 17 Wall. 580.
The decree of the chancellor is affirmed.
