Waldrom v. Waldrom

Dec 15, 1884

Versions:76 Ala. 285

CLOPTON, J.

— A decree of- the Probate Court, on the final settlement of a guardian, possesses the same dignity, and has the same force and conclusiveness, as the judgment of any court of record. While a court of equity has original jurisdiction to open such settlement, when it is appealed to, and its jurisdiction invoked for such purpose, the same special grounds of equitable interference must be shown, as in case of a judgment at law.— Waring v. Lewis, 53 Ala. 615. A proper and due regard for i the peace and interests of society requires strictness and caution in еxercising the power to disturb the decrees and judgments of other courts of competent or concurrent jurisdiction, and re-opеning controversies, which it is the policy of the law to quiet. The court will not interfere on account of irregularities in the proceedings, or merely to review and correct errors, or when there is a plain and adequate ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍remedy at law. To successfully invoke the interposition, it is not sufficient that wrong has been done, but it must be manifest that the wrong occurred because of accident, surprise, fraud, or thе act of the opposite party, and without fault or neglect on the part of the party complaining. A concurrence оf injustice committed, and freedom from fault and negligence, is an indispensable condition to the exercise of this jurisdiction.— Humphreys v. Burleson, 72 Ala. 1; Beadle v. Graham, 66 Ala. 102; Bowden v. Perdue, 59 Ala. 409.

2. The policy of insurance mentioned in the bill, having been made payable to the wife and children of the complainant, and having been issued for thеir benefit, vested an interest in them. In Drake v. Stone, 58 Ala. 133, it is said : “We hold that, under an ordinary life-policy, an interest vests in the person for whose benefit it is taken out, whеn the policy is delivered, subject to be devested on forfeiture upon non-payment of the premium, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍as the policy may prescribe; and on the death of the beneficiary, either before or after the death of the assured, the fund arising therefrom goes by bequest оr succession, as other personal assets of the beneficiary.”— Williams v. Williams, 68 Ala. 405. Whether the complainant, being the assured, surrendered the policy, and received its cash value, according to its terms, which are not set out, or whether he did so without authority, then, on his action being rаtified by the beneficiaries having capacity, their shares of the sum received vested in them, and their right relates to the time of its reception. To obtain the money from the insurance company, the complainant procured the appointment of guardian, аnd received it in that capacity. The complainant was under the same fiegal duty to preserve and manage the portions of the fund belonging to the estate of his minor children, as guardians, not sustain*290ing the parental relation, are in respect ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to the property of their wards.

3. The injustice, of which the complainant complains, is, that he expended during their minority, in maintaining and educating the children, who hаve recovered decrees against him, more than the sum of their shares of the fund ; and he insists, that he should be allowed a set-off against his liability as guardian. The duties, arising from the relation of parent and child, are reciprocal. The father owes his minor child care, prоtection, nurture and education — nurture and education, suitable to his estate and condition in life — and is entitled to the services and obedience of the child. When the child has an estate, and the father is unable to maintain and educate him in a manner authorized by such estate, a court of equity will, under such circumstances, make an allowance out of the infant’s estate, to supplement the father’s inаbility. “Benefit to the infant is the controlling consideration ; but the circumstances of the father may be inquired of, to determine whether or not hе is able to properly maintain such child.” — Barnes v. Barnes, 64 Ala. 375.

4. When a father, being also guardian, has expended money of the estate of his child, in his support аnd education, the father’s means being inadequate, and the expenditures- being necessary, and suitable to the estate of the infant, and ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍such as a court of equity would have decreed, he will be allowed a credit for such expenditures, on a settlement of his accounts as guardian, subject to a set-off to the value of any services which the child has rendered the father.— Calhoun v. Calhoun, 41 Ala. 369. If a decree has beеn rendered by the Probate Court, and the guardian appeals to a court of equity to open such decree, his title to relief must be made manifest by clear and definite averments, showing that the expenditures were made under such circumstances, as would have entitled him to a credit on the settlement in the Probate Court. The averments of the bill are vague, uncertain, and insufficient. Had all the facts avеrred in the bill been proved, the Probate Court would not have been authorized to credit the complainant with the disbursements.

5. The decree recites, that a citation was regularly issued, and served on complainant ten days before the day of the settlement, in all respects according to law, and as directed by a former order of the court. It may be conceded, that the recital is not cоnclusive, and can be controverted ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in any direct proceeding attacking the decree. And it may be further conceded, that the citation was received by complainant less than ten days before the rendition of the decree. This does not make the decree void, and is insufficient to authorize the interference of a court of equity. In Dunklin v. Wilson, 64 Ala. *291162, we said: “Want of notice or knowledge is not enough. He must go further, and show, both in averment and proof, that he had and has a defense, good in law, and in what that defense consists. The court must be put in possession of the facts; for the sufficiency of the defense is an indispensable element of the issue.”

The excuse assigned by cоmplainant, for his failure to present his defenses in the Probate Court, is sickness, bad roads, bad weather, personal attention to other business, and a message sent by the deputy-sheriff to the judge of probate, that he could not be present. No effort was made to employ counsel, or to procure a continuance. No adequate means were used to bring his defenses or his condition to the attention of the court. So far as appeared to the court, he was indifferent to the settlement. And when he was carried to Linden, three days after the settlement, no inquiries concerning the matter were made, and no application for a new trial, it is the comрlainant’s misfortune, if, owing to his supineness and inattention, he did not hear of the rendition of the decrees in time to have any injustice rectified. He did not exercise the due diligence exacted of those who address a court of equity, for relief against a judgment at law. The complainant is not without fault or negligence. — French v. Garner, 7 Por. 549 ; Pharr v. Reynolds, 3 Ala. 521; Stinnett v. Br. Bank, 9 Ala. 120.

Affirmed.