Ex Parte Brown

148 So. 132, 226 Ala. 578, 1933 Ala. LEXIS 415

• Court: Supreme Court of Alabama
• Decided: May 11, 1933
• Docket: 6 Div. 331.
• Status: Published

Opinion

ANDERSON, C. .T.

The United States Fidelity & Guaranty Company, as surety upon the bond of O. B. Custer, guardian, filed a petition with Hon. Win. M. Walker to remove the settlement of guardianship from the probate to the chancery court of Jefferson county. The petition was granted, and the petitioner here seeks a mandamus requiring said Walker to vacate the order of removal.

It is, of course, well settled that the probate and chancery courts have concurrent jurisdiction in guardianship settlements, and, as held in the recent case of Ex parte Chapman, 225 Ala. 168, 142 So. 540, that the surety on the guardian’s bond, while an interested party, has no right to remove the settlement to the chancery court without averring a special equity. The question here is, Does the petition to Judge Walker aver a special or independent equity so as to differentiate this case from the Chapman Case, supra? It not only avers a fraudulent collusion between the two guardians and the ward to procure an unjust decree against the surely, the principal being insolvent, but also seeks a discovery and an accounting of numerous and complicated matters peculiar to the powers and jurisdiction of the chancery court.

The writ of mandamus is denied.

THOMAS, BROWN, and KNIGHT, JJ., concur.