Matthews v. Mauldin

142 Ala. 434

• Court: Supreme Court of Alabama
• Decided: November 15, 1904
• Status: Published

Opinion

ANDERSON, J.

The complainants, mfinors, filed their bill by next friend, against their guardian and two sets of sureties on his official bonds for the purpose of bringing the said guardian, to a settlement.

The jurisdiction of the probate court and the court of chancery are concurrent in matters of guardianship, and .the ward has an unqualified right of electing the forum in which he will seek a settlement. — Haley v. Boyd, 64 Ala. 399. And a final settlement made in the probate court by the guardian before his resignation or removal and during the minority of his ward, is void for want of jurisdiction of the probate court. — Glass v. Glass, 80 Ala. 241; Glass v. Glass, 76 Ala. 368; Lewis v. Alred, 57 Ala. 628; Lee v. Lee, 67 Ala. 406.

A bill by a ward against, the guardian and several sets of sureties on- his official bonds, is not liable to objection on ground of misjoinder, multifariousness and want of equity,- and the demurrers were properly overruled by the chancellor. — Dallas County v. Timberlake, 54 Ala. 403.

When one of the sureties filed his application, under the statute, for release from the old bond, the guardian was ordered to make a new bond and it appears that the new one was signed by Painter, et al., but that it was never executed by the principal, Matthews. If the bond was not executed by the principal, which fact is undisputed, it is not a statutory bond and did not authorize the issuance of execution under the statute. The bond, however, is good under § 2282 of the Code of 1896 as a common law liability. — Painter v. Mauldin, 119 Ala. 88.

The sureties on the old bond are liable for any devastavit prior to their release, and which could not have been sooner than the approval of the new bond, as to any of them. — § 2280, Code, 1896. The uncontroverted evidence established the fact, that the conversion of the trust fund was long before the execution, by the sureties of the new bond. Matthews testified that he used $¡100.00 of the fund as soon as he got it to pay a debt that he owed and deposited the balance with the “Dowling Company” to his individual credit; that it is not now on deposit and that he never used any of the money for the use of his wards. This was clearly a conversion and fastened the liability on the sureties on the old bond. Henderson v. Henderson, 58 Ala. 582; DeJarnett v. DeJarnett, 41 Ala. 708; McLeroy v. Thompson, 42 Ala. 656.

The misappropriation having taken- place, long before the making of the new bond, the next question presented for our consideration is; are the sureties on the new bond liable? The authorities upon this subject are. not entirely harmonious. The prevailing rule, however, and the one to which we adhere, holds them liable, upon the ground of the guardian’s obligation to make true account. — 15 Am. & Eng. Ency. Law, p. 119 and cases cited in note 4; Whitworth v. Oliver, 39 Ala. 293; Modowell v. Hudson, 80 Ala. 268; Lee v. Lee, 67 Ala. 406.

The. decree of the chancellor is affirmed.

McClellan, C. J., Tyson, and Simpson, J.J., concurring.