Speight v. Knight

11 Ala. 461 | Ala. | 1847

GOLDTHWAITE, J.

1. We are not aware of any statute which declares the removal of the guardian from the State shall be a ground for displacing him; and there are enactments which allow non-resident guardians to secure the estates of their wards within our jurisdiction as well as others, which evidently contemplate that a resident guardian may on receiving the assent of the orphans’ court, remove the estate of his ward elsewhere, under certain prescribed conditions. [Digest, 170, § 17, 18; Ib. 171, § 20, 21.] In the absence of specific legislation on this subject, it is possible the orphans’ court, in its exercise of general power over this subject, may possess the power to commit the guardianship of a minor to a non-resident under peculiar circumstances, but the general rule doubtless is to appoint a resident guardian. This seems to be indicated by the act of 1843, which evidently points to the removal of an executor, administrator or guardian, as a circumstance which will authorize the orphans’ court to call the individual to a final settlement of his trust. [Digest, 230, § 47.] That court is invested also with the general power to displace a guardian on suf&cient cause being shown. [Ib. 267, § 4.] Hence we conclude, that although the non-residence or removal from the State of the guardian is not a matter which imposes the duty on the court to displace him absolutely and' in all cases, yet it is a ground for removal whenever in the discretion of the court a nonresident guardian would not be allowed in the first instance.

2. Conceding, then, that the orphans’ court has the power to displace a guardian on the ground of his having removed from the State, the question arises, what is the proper course of proceeding to remove him. There is a single instance in which the court is permitted to displace an executor, administrator or guardian without notice, and that is when he is charged with a breach of duty, and it is made to appear he has removed from the State or otherwise endeavored to elude the service of process on the complaint. [Digest, 221, § 5.] In general, when the court proceeds to the removal of a guardian for any cause not covered by the enactment just referred to, it is requisite to give him fourteen days’ previous notice hy citation to appear and show cause why he should not be displaced. [Digest, 267, § 5.] Under these statutes we incline to think the proper course is to state a complaint in writing against the guardian, specifying the grounds on which his removal is sought, on which the necessary citation is issued, and if not made known by personal service on the ground, is not within the provisions of the statute, which warrants a summary removal without notice, the service would be made effectual by publication of the order to appear.

3. It does not appear here that notice was served on the guardian, that publication was made, or that there was proof to the court of any breach of duty warranting a removal without notice, and the appointment of the succeeding guardian, is clearly irregular; but this, in our judgment, is a matter which can be revised only in a direct proceeding with reference to the appointment. The validity of the appointment of Knight is entirely collateral to the settlement between him or his ward and the former guardian. In all testamentary and guardianship causes the appointment of the administrator or guardian is a distinct act of the court, which cannot be collaterally impeached, and which, however irregular, is not open to inquiry in the subsequent proceedings. This precise question was thus ruled in regard to the probate of wills in 7 Ala. Rep. 9.

4. Viewing the proceedings in this cause as a settlement of the guardian’s account by the orphans’ court, it is evident there is no conformity with the statutes. The first section of the act of 1843 provides, that when any executor, administrator or guardian shall have removed beyond the jurisdiction of the court granting the letters, without having settled his accounts, the court may on the application of any one interested, cause notice to be given by advertisement, requiring the executor, &c. to file his accounts and vouchers for settlement at a regular term of the orphans’ court, to be holden not less than three months from the date of the notice. In the event of the failure of the executor, &c. to appear and file his account and vouchers for settlement, the judge is required to state the account on the best information he can obtain, “ and proceed to settle and decree on the same as is now required by law : provided, that if said executor, &c. shall appear and file his account and vouchers for settlement, and pay all such costs as may have accrued in consequence of his defalcation at any time before the final hearing of the account stated as aforesaid, and decree thereon, it shall be the duty of the court to set aside the proceedings aforesaid, and to audit and settle the account filed by the executor, &c- in manner and form as now required by law. [Digest, 230, § 47.] And from this it will be seen that the three months’ notice required to be, was not given. The order for settlement was made the third of March, and the day set for the settlement was the 17th of April. It is true, the account was not stated until the 23d of June afterwards, but this circumstance cannot validate the proceedings, which are entirely irregular for the omission of the statutory notice.

5. In proceeding under this section of the statute, it deserves consideration whether a final decree can be made at the same term as that at which the account is stated by the court, and also whether, when the account is stated, the executor, &c. is not to be cited, as well as all others interested in the final settlement, as in other cases where the account is stated by the executor, &c. It will be seen, we think, that there is considerable difficulty in the construction of this section, as the proviso seems to indicate the right of the executor, &c. to set aside the proceedings at any time before a final decree — a privilege which would be of little value, if the final decree was a consequence of stating the account. Independent of this, there seems good reason to suppose a publication is necessary, because- others than the executor, &c. maybe concerned in the final adjustment of the account, besides the party at whose instance the proceeding is had. We throw out these remarks, to invite the attention of suitors interested in the proper construction of this statute, without intending to conclude any thing by these queries.

The result of what has been said is sufficient to indicate' that this proceeding is fatally defective, and therefore the judgment is reversed, and the cause will not be remanded, inasmuch as the first step is defective. It is scarcely necessary to advert to the form of the judgment in the name of the guardian instead of the ward, as that is covered by repeated decisions.

Judgment reversed.