Rives v. Elinn, 47 Ala. 481

Rives v. Elinn

47 Ala. 481 | Ala. | 1872

B. E. SAEEOLD, J.

The bill is filed by the appellant, as the heir and distributee of the estate of Mary A. Rives, against the sureties of her administrator, Bozeman, for a final settlement of his administration in the chancery *491court. By agreement of the counsel for both parties, the single question is presented for our consideration whether the sureties are protected against the account by the statute of limitations of six years in favor of the sureties of executors, administrators, guardians, &c. — Revised Code, § 2901, ¶ 6.

The bill charges that Bozeman was appointed administrator in 1857. He received property of the estate, and in December, 1859, made a pretended final settlement, a transcript of which is appended as an exhibit. From this transcript it appears that Bozeman filed his accounts and vouchers for a final settlement, and a day was appointed for the hearing. On that day the general guardian of the complainant, Wm. H. Rives, appeared to represent him. With his consent and concurrence, a decree wasTendered against the administrator in favor of the complainant for a considerable sum of money. This decree was for his distributive share of the estate, there being only money to be divided, in accordance with section 2158, Revised Code, and upon it execution was ordered to issue.

The matters of complaint charged in the bill are all such as relate to a time anterior to the final settlement. The chief grievance is that the administrator wasted the property, and failed to account for all for which he was liable. The property being in money at the time of the settlement, could not afterwards be commingled, or wasted, in the sense usually attached to those words.' The final settlement was an ascertainment of the extent of the administrator’s liability, which fixed the liability of the sureties. They were then equally bound with himself to satisfy the decree. — Yonge v. Ward, 45 Ala. 474.

But the appellant says the final settlement was void, because the minor was not properly represented. Notice of the day fixed for the settlement is given by publication. Rev. Code, § 2140. When special notice to the infant is required, as in chancery, it is served on the general guardian. — Rule 20, Chan. Prac. The general guardian may appear for the minor, and such appearance dispenses with notice. — Smith v. Smith, 20 Ala. 761; Morgan v. Morgan, *49235 Ala. 307. There is no reason why the law should be otherwise, except in cases where the guardian is adversely interested. The final settlement is not void.

The settlement was made on the 14th of December, 1859. The bill was filed on the 6th of October, 1870, The statute declares that actions against the ¡Sureties of executors, administrators, or guardians, for any misfeasance or malfeasance whatever to their principal, shall be barred in six years, the time to be computed from the act done or omitted by their principal, which fixes the liability of the surety. — Rev. Code, § 2901, ¶ 6. It does appear from the bill that six years had elapsed between the date of the final settlement and the filing of the bill, after deducting the time between the 11th of January, 1861, and the 21st of September, 1865. The demurrer was properly sustained.

The decree is affirmed.