Willis v. Rice

141 Ala. 168 | Ala. | 1904

DOWDELL, J.

The bill in this case is- filed by Mrs. Kate Rice nee Brasfield and her sister Bailie Brasfield against tli.ei appellant Byrd 0. Willis to compel an ae-cuntiug and settlement by him of his guardianship of their estate. The bill after amendment was demurred to, and from tin1 decree of the. chancellor overruling the demurrer tire present appeal is prosecuted.

The bill shows tha,t the respondent Willis was appointed guardian for the complainants, and as such liad the management and control of their estates. 'When he became guardian, the complainants were both minors of tender years, and his guardiianship.com tinned throughout their minority, and until each respectively attained her majority. The bill further showis that a' considerable amount of property, real and personal,- belonging to the complainants, came into his hands, but for want of information from their guardian they were, unable to' definitely describe the property or to give the dates when he received the same. It is alleged that on April 10th, 1891, the said Willis made a partial settlement of his accounts as such guardian in the probate court of Mobile county, whereby it-was then ascertained that he was indebted to the1 complainant, Kate Brasfield, in the sum of eighteen hundred and fifty-one and 06-100 ($1,851.06) dollars, and to the complainant, Sallie Brasil eld, in the sum of nineteen hundred and fifty-two and 71-100 (1,952.71) dollars* since which time no account has ever been stated by their said guardian.

It is shown that subsequent to such partial settlement other property of complainants, came into the hands of said Willis from different sources. The bill further charges that the respondent used complainant’s money for his own account and benefit, lending out some, and with sonreí, paying off mortgages on his own property. That he used three thousand two hundred and fifty ($3,250.00) dollars of complainant’s money in the purchase of a house, and -afterwards on June 7th, 1900, put on record in Mobile county deeds conveying this property to the complainants at a recited consideration of five thousand dollar's, but that he continued to receive the rents from said property until April, 1901; that he allowed the taxes to accumulate on said property. It is also charged that as. each of the complainants, came of age, or shortly thereafter, the said Willis induced them to ¡sign a paper prepared by himself reciting that he had had a full settlement, of his accounts with them, and it is further averred that he used such papers to have himself discharged as such guardian by the probate court, without any notice to the complainants. That in getting-each of them to sign such paper he took advantage of their youth and inexperience, and of his influence over them, he being their guardian, and their uncle by marriage. The bill then avers, that no accounting in fact was over had with complainants, nor was any ever had in the probate1 court. The bill further shows that after signing such papers, the complainants repeatedly tried to get a. statement fro-m the respondent, but that he always put' them off, or pretended to he hurt by their lack of confidence in him. And not until some time in the year 11)01, and after he had been discharged by the probate court, did he ever pretend to make to them a statement. This paper is attached to. and made a part of the bill as exhibit “A”. By it, it is shown in round numbers, that he had as guardian received thirteen thousand six hundred and sixty-six ($13,606.00) dollars, but gives no dates. The credit side of this 'Statement is equally indefinite and unsatisfactory. It is charged that further effort was made through the attorney of complainants to obtain a more detailed statement from the respondent, bul he refused to givei it.

The special prayin’ of the bill is for an accounting and set!lenient by the respondent of his guardianship, and for subrogation whore he used complainant’s money to raise the mortgage from his own property. The bill also contains a. general prayer for relief.

The hill was demurred to on several grounds. A casual reading of the bill is sufficient to show that the first and. second assignments of the demurrer, — that it affirmatively appears that one accounting and settlement has been had by the guardian, — is groundless in fact. It is distinctly charged that an accounting and settlement has never been had. It. is true it appears from the bill that the respondent was discharged by the decree of the probate court as on a .settlement, hut iti is shown by the bill in this connection, that such discharge was procured by rhe respondent without an accounting and settlement, and on a paper prepared by himself, which he influenced the complainants to sign, and which in fact was untrue in its statements.

That the chancery court'lias jurisdiction to compel the settlement of a guardianship is beyond question, and the present bill being for that purpose, on the facts stated, the court may and will, under the general prayer, in order to have such settlement, set aside the decree of the probate court dis.charging the guardian, when, it is shown that the decree was procured by him through fraud or other improper conduct. There is no- m'erit in the assignment- that it is not shown how the respondent took advantage of the complainants in the matter of signing the paper acknowledging full settlement. His relation was one. of greatest, confidence and trust and called for the utmost of good faith. It was his duty to fully inform them of their rights in all respects. It charged that lie took advantage of their1 youth and inexperience, and of his influence over them in getting them to sign tliei paper, which, they further charge, was untrue in its statements. This was sufficient. They were his wards, and from tender years liad lived with him, and grown up under his care and control; and it requires no effort to understand how easily they might, he influenced by him against their interests. The assignment that no injury is shown to have resultad to complainants by reason of the decree discharging the respondent, is equally without merit.

It appears from the bill that the alleged' settlement by the respondent with the complainant, Mrs. Kate Rice, and his discharge as such guardian by the decree of the probate court of Mobile county, was more than four years before the filing of the bill. A bill to impeach a decree for fraiid, though not within the terms of the statute, which bars a bill of review after a lapse of three years, must by analogy be governed by tlie same limitations. — Gordon’s Admr. v. Ross, 63 Ala. 363. No. sufficient- reasons are shown in tliei present bill to relieve it from tlie bar of three years a,s to the complainant, Mrs. Rice, and the demurrer to the bill on this ground should have been sustained. But this is not the case as to the other complainant, Miss Sallie Brasfield. The alleged settlement with her, and discharge by decree; of the probate court of the guardian occurred ivithin three years of the filing of tlie bill. Nor is she chargeable with laches under the facts stated in the bill. The bill shows that after signing the «lid paper prepared by her said guardian, and under the circumstances averred, she repeatedly sought to' have a statement of her account, and this within a reasonble time, which he refused to give. She furthermore endeavored to obtain a statement through her attorney, and failing in this, the present bill was filed. In all of this, we are unable to see that she was. guilty of laches. In support of the views expressed in the foregoing opinion, see Voltz v. Voltz, 75 Ala. 565; Baines v. Barnes, 64 Ala. 383; Jackson v. Harris, 66 Ala. 566; Malone v. Kelley, et al., 54 Ala. 538; Kyle v. Perdue, 95 Ala. 585.

It follows that the decree must be reversed, and a decree here rendered sustaining the demurrer, and with leave to the complainants to amend their bill.

Reversed and rendered.