61 Ala. 53 | Ala. | 1878
The settlement made by the guardian in 1857, was a partial or annual, and not a final settlement. The decree rendered would not have authorized the issue of an execution, nor supported an appeal. The only effect of it was as evidence of the state of the guardian’s accounts at the time. It was prima facie evidence, (if regularly made), that the guardian was not then chargeable with .any greater sum of money, than was - charged against her, and was entitled to all the credits embraced in the account. On final settlement its correctness was disputable, and it would have been competent for either guardian or ward to have shown its incorrectness in any respect. It was not a bar to the present bill, filed by the ward after her majority, to compel a settlement of the guardianship.
A settlement of a guardianship, partial or final, is irregular, unless the infant ward is represented by a guardian ad litem. But of the irregularity, neither the guardian nor his sureties can take advantage. As to them the settlement is as binding and conclusive, as it would have been, if the guardian, who is bound to conduct the settlement regularly, had not proceeded until there was an appointment and appearance by a guardian ad litem. — Hutton v. Williams, 60 Ala. 107; Lewis v. Alred, 57 Ala.--.
It is questionable whether in the absence of statutes authorizing it, a guardian had authority to loan the monej^s of his ward on personal security merely. Whether he had or not, it is certain, that if he made a loan without any other security than the personal obligation of the borrower, he incurred a liability to the ward for the money loaned, though the borrower was of undoubted credit and solvency. — Lee v. Lee, 55 Ala. 590. The statutes expressly declare that “‘he must, if practicable, lend out all surplus money of the ward on bond and mortgage, or on good personal security.” — Code of 1876, § 2773. Therefore, when the guardian, without
A guardian is entitled to a credit only for moneys actually expended for the ward, or for necessaries he may actually supply. The onus of proof is upon him, and no credit can be allowed him, whether it be for money expended, or necessaries supplied, unless the evidence is of that character, which would support an action at law, if the guardian was suing the ward, in an action ex contractu. — Hutton v. Williams, supra, and authorities cited. Applying this principle to the exceptions to the report of the register,' they were properly overruled.