Cook v. Wimberly

Supreme Court of Alabama

Cook v. Wimberly

24 Ala. 486

CourtSupreme Court of Alabama

DecidedJanuary 15, 1854

StatusPublished

Cited by2 cases

This text of 24 Ala. 486 (Cook v. Wimberly) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cook v. Wimberly, 24 Ala. 486 (Ala. 1854).

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Opinion

CHILTON, C. J.

Section 2081 of the Code provides for the removal of the person and estate of a ward to another State by the resident guardian, upon complying with the requirements of said section, as to making full settlement of his accounts in this State, producing the transcript of his appointment in the State to which he desires to remove the [488]*488guardianship, and proof of his having given good security, &c. The succeeding section (2082) applies to cases where the guardian and ward are both non-residents of this State ; that is, where the jurisdiction of the court over the ward first attaches in another State by the residence of the ward in that jurisdiction.

It is very clear, that it was not the object of the Legislature to put it in the power of any one who might choose to take the ward without the jurisdiction of the Probate Courts of this State, thereby to oust such courts of their jurisdiction, and to compel a removal of the guardianship to another State. On the contrary, when the ward resides in this State, and a guardian has been duly appointed here, the removal of the ward to another State, while the guardian and the estate remain here, does not constitute such non-residence as is contemplated by section 2032. It may well admit of doubt, whether the ward, without the consent of the guardian, can acquire a domicil in another State. Be this, however, as it may, it would be a clear violation of the rights of the resident guardian, to suffer him to be removed and to be divested of the estate which the law has committed to his management, merely because the party seeking to oust him may have succeeded in removing the ward to another State, and in taking out letters of guardianship there.

Upon an examination of the facts contained in the petition for a removal of this guardianship to Tennessee, it is manifest that the petitioner fails to show such a case as falls within the meaning of either of the above mentioned sections of the Code ; and, as the legal sufficiency of these facts was submitted by the demurrer to the petition, we are of opinion the court very properly sustained the demurrer.

Let the judgment be affirmed.

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CHILTON, C. J.

Section 2081 of the Code provides for the removal of the person and estate of a ward to another State by the resident guardian, upon complying with the requirements of said section, as to making full settlement of his accounts in this State, producing the transcript of his appointment in the State to which he desires to remove the [488]*488guardianship, and proof of his having given good security, &c. The succeeding section (2082) applies to cases where the guardian and ward are both non-residents of this State ; that is, where the jurisdiction of the court over the ward first attaches in another State by the residence of the ward in that jurisdiction.

It is very clear, that it was not the object of the Legislature to put it in the power of any one who might choose to take the ward without the jurisdiction of the Probate Courts of this State, thereby to oust such courts of their jurisdiction, and to compel a removal of the guardianship to another State. On the contrary, when the ward resides in this State, and a guardian has been duly appointed here, the removal of the ward to another State, while the guardian and the estate remain here, does not constitute such non-residence as is contemplated by section 2032. It may well admit of doubt, whether the ward, without the consent of the guardian, can acquire a domicil in another State. Be this, however, as it may, it would be a clear violation of the rights of the resident guardian, to suffer him to be removed and to be divested of the estate which the law has committed to his management, merely because the party seeking to oust him may have succeeded in removing the ward to another State, and in taking out letters of guardianship there.

Upon an examination of the facts contained in the petition for a removal of this guardianship to Tennessee, it is manifest that the petitioner fails to show such a case as falls within the meaning of either of the above mentioned sections of the Code ; and, as the legal sufficiency of these facts was submitted by the demurrer to the petition, we are of opinion the court very properly sustained the demurrer.

Let the judgment be affirmed.

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Bluebook (online)

24 Ala. 486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-wimberly-ala-1854.

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