Starling v. Balkum

47 Ala. 314 | Ala. | 1872

B. P. SAFFOLD, J.

The appeal is upon exceptions taken by the appellant to the final settlement of her guardian.

1. A guardian in this State, as a general rule, is not chargeable with compound interest unless he collects it. Tyson v. Sanderson, January term, 1871; Revised Code, §§ 2426, 2427.

2. He should not be charged in specie because the funds received by him in February, 1861, were equivalent to it. The treasury-notes of the United States are made a legal tender for debts contracted before as well as since the act of congress of February 25, 1862.

3. A guardian is not permitted, of his own authority, to break in upon the capital of sums belonging to an infant. If the income of the estate is insufficient for the maintenance and education of the ward, it must be so made to appear to the satisfaction of the probate court, and its order for the use of the principal obtained. — Revised Code, § 2433; Tyler on Infancy, 292. But the necessity of such use is not shown, when the ward is capable of maintaining herself, and no sufficient reason appears why the guardian could not cause her to be employed in some becoming manner. — Long v. Norcom, 2 Iredell’s Eq. R. 354.

• Where a guardian, with the care and consideration of a parent, is mindful of his ward’s mental and moral culture, and encroaches upon the corpus of a small estate in the proper education and training of the ward, the court should be more disposed to sanction his expenditures, than where he leaves her to grow up in ignorance, committing her, perhaps, to the care of unsuitable persons, and not seeing her for several years at a time. It is within the authority of the probate court to protect the expenditure, when it exceeds the income, in such a case as the court would have ordered it. — Tyler on Infancy, 292-295.

The testimony clearly proves that the guardian paid little or no attention to his ward, and committed her entirely to the control of her aunt, who treated her with more or less severity, and compelled her to labor for her beyond the ordinary assistance which might be supposed to have been voluntarily rendered. Her education was wholly neglected, while her time wns spent in the service of another. ’ She was a healthy child, and her guardianship continued from, her eighth to her eighteenth year. This is not such a case as would justify any encroachment upon the capital of her estate, or any considerable allowance for her board. — Montgomery v. Givhan, 24 Ala. 568-588; Stewart, Guardian, v. Lewis, 16 Ala. 734.

4. The guardian is a competent witness for himself. He must prove his credits, and after he has adduced sufficient evidence to sustain them, the contestant may rebut it with contrary proof.

The judgment is reversed, and the cause remanded.