104 Ala. 303 | Ala. | 1893
Mattie G. Matthews, as guardian of Richard L. Matthews and others, minors, filed her petition in the probate court of Jackson county for an order to sell certain lands belonging to the estate of her wards and situate in the county of Calhoun ; and the question presented by the demurrer of the guardian ad litem in the probate court, and now presented on appeal to this court, is, whether the probate court out of which letters'pf guardianship issued, in which the administration of the guardianship is pending and which is of the county of the residence of the guardian and ward, or the probate court of the county in which is situated the ward’s lands, has jurisdiction, un the petition of the guardian, to order a sale of such land for the support and education of the ward. In Turnipseed v. Fitzpatrick, 75 Ala. 297, 301, the guardian and wards resided in Pike county, and the letters of guardianship had been issued by the probate court of that county. The ward’s lands were situated in Bullock county. A petition was filed by the guardian in the probate court of Pike for an order to sell these lands in Bullock for division among the wards. The order was granted and the lands were sold under it; but this court held the sale utterly void for the want of jurisdiction in the probate court of Pike county to order it. This case is directly in point on the question we are considering, upon it the court below sustained a demurrer to the petition of the guardian, and that ruling must be affirmed here unless we overrule Turnipseed v. Fitzpatrick. -We think that case is unsound in the particular involved here and will not follow it. The conclusion reached by the court in that case was upon analogies supposed to be furnished by the statute for the partition of lands among tenants in common or joint tenants, and by real
The analogy between this proceeding and actions for the recovery of land is equally, if not more imperfect. Those are adversary actions always. This proceeding -is never of that character, but to the contrary is always instituted in the interest of the wards and for their benefit ; and it is never successful unless it be made to appear that their interest will be subserved thereby. Manifestly, this inquiry can be best determined in the county of their residence and by the court having control of their estate and advised of its condition and their necessities, than in a county hundreds of miles away, and in a court having nothing to do with the estate and unadvised of its condition and the like. All this is otherwise in'respect of actions for the recovery of land. These actions
It is upon these considerations — and others will suggest themselves — that we decline to follow Turnipseed v. Fitzpatrick, 75 Ala. 297, supra, and hold that the petition in this case was properly filed in Jackson county. The demurrers should have been overruled. The decree sustaining it is reversed, and a decree will be here rendered overruling the demurrer.
Reversed and rendered.