Modawell v. Holmes

40 Ala. 391

• Court: Supreme Court of Alabama
• Decided: January 15, 1867
• Status: Published

Opinion

BYRD, J.

1. The appeal was taken, and security for costs thereof was given, in substantial conformity to law; and the motion of the appellee to dismiss the appeal is overruled.

2. It is contended that the probate court had no jurisdiction to settle the guardianship of a guardian who, before settlement, becomes a non compos mentis, upon an account filed by the guardian of the latter. There is no statute which, in express terms, confers such jurisdiction, it may be conceded. But it is argued that, under the general authority conferred by the Code on the probate court, it has jurisdiction to make such a settlement. There is no adjudication of this court which throws any light on the question, and the counsel for the parties, in their elaborate briefs, have not referred to any case or authority, in England or America, which has discussed or settled the question or practice in such cases; and we have been unable to find any. No case or authority has touched upon the question, how the accounts of a guardian or administrator, who becomes non compos mentis after obtaining letters, are to be settled. No doubt such eases have arisen and been decided, but we have not found them in the boohs. We shall, therefore, proceed upon principle and the analogies of the law to dispose of this question.

In England, the crown originally had the right to dispose of the guardianship of all-idiots and persons non compotes mentis; and a bailiff was appointed to take the eontrol of the estate and person of such persons. Afterwards, by acts of parliament, the duty or jurisdiction of the appointment of a committee for such persons was conferred on the lord-chancellor, and the committee acted subject to the control of the court of chancery.

In New York, the exclusive jurisdiction over such persons and their estates is conferred on the court of chancery, and all claims or debts against them are collectable exclusively by filing a petition in the court making the appointment of the committee, for that purpose. — In re Fitzgerald, 2 Sch. & Lef. 451; 1 Shar. Black. Com. 303, 306; La Moureaux v. Crosby, 2 Paige, 422; In re Hopper, 5 Paige, 489. But an action may be sustained in the name of the non compos, to recover property belonging to him, or a debt due him, and not in the name of his^committee. — Lane & Gros v. Schermerhorn, 1 Hill, 97; Crane v. Anderson, 3 Dana, 119; Petrie et al. v. Shoemaker, 24 Wendell, 85; Latham v. Wiswall, 2 Ired. Eq. 294; Cameron’s Com. v. Pottinger, 3 Bibb, 11.

In this State it has been decided, that a non compos may be sued, and'that the court should appoint an attorney to make defense for him.— Walker v. Clay & Clay, 21 Ala. 804; Ex parte Northington, 37 Ala. 496. But it has never been decided by this court how a suit, should be brought, to recover property belonging to a non compos, or a debt due to him. Neither has it been settled, by statute or adjudication, how the administration or guardianship of such a person upon the estate of another is to be settled, unless the general powers conferred on the probate court by the Code does so.

There is no general and plenary jurisdiction conferred <on tbe probate court, over tbe persons and estates of lunatics or persons of unsound mind. Tbe term “orphans’ business” in tbe constitution of tbe State does not include such persons or their estates. Tbe jurisdiction is not constitutional, but purely legislative, limited, and special; that is, so for as tbe statute law confers jurisdiction on tbe probate court, it can go, but no farther. — Rambo v. Wyatt’s Adm’r, 29 Ala. 510.

We will now notice tbe extent of tbe jurisdiction of that court given by statute, so far as applicable to tbe point under consideration. Section 670 of tbe Code confers on tbe probate court original jurisdiction to appoint and remove guardians tor minors and persons of unsound mind, and to decide “ all controversies as to tbe right of guardianship and tbe settlement of guardian accounts.” Section 672 confers on such courts full powers to enforce tbe jurisdiction with which tbe statute law clothes them. Chapter 3, of title 5, part 2, of tbe Code, (p. 385,) and chapter 11, title 2, part 3, (p. 499,) taken together with sections 670 and 672, confer all tbe jurisdiction tbe probate court has over tbe persons and estates of persons of unsound mind. A statute, passed since tbe adoption of tbe Code, confers jurisdiction upon tbe probate court to make settlement of tbe guardianship of a ward, after tbe death of tbe guardian, with tbe executor or administrator of such guardian. This statute is general, and applies to guardians of persons non compos, as well as other guardians. — Pamph. Acts 1853-54, page 24.

If Holmes, tbe guardian in this case, bad died after inquisition found and appointment of a guardian for him, and before a settlement of bis guardianship, it is evident that bis personal representative could have settled tbe guardianship in tbe probate court, under tbe provisions of tbe statute last referred to. If Holmes bad become insane, pending a final settlement of bis guardianship in tbe probate court, on an acoount filed by himself while sane, it would, upon principle, have been competent for tbe probate court to have appointed an attorney, or to have allowed bis guardian, if one bad been appointed, to conduct tbe settlement to a final decree. And if a guardian becomes non compos, without having filed an account for a final settlement, it seems to us that the probate court, under the provisions of the Code, had the authority, after inquisition found, to appoint a guardian for him, and require a bond as prescribed by law (Code, p. 500); and the court had the authority also to require, by appropriate process, (Code? § 672,) the non compos guardian to make a settlement of his guardianship; and after service of process, it would be the duty of the court to appoint an attorney, or his guardian, to make answer to the process and proceed with the settlement. The better practice, under our law, wouldbe to appoint the guardian of the non compos to conduct the settlement; for the reason, that he is entitled to the custody of the papers and property of his ward, and has given bond for the faithful discharge of his duties, (Code, § § 2754, 2755,) and he is also an officer of the court, pro hoc vice, and subject to its control.

A guardian of a non compos, under our Code, has substantially all the powers, and sustains all the relations, of a committee in England, though the jurisdiction of the probate court over the estate and person of the non compos, or over the guardian, is not as general and plenary as is that of the court of chancery in the mother country.

If, then, the non compos guardian could be required to settle his guardianship by the probate court, through his guardian, we see no reason why he could not by his guardian proceed to make the settlement, without awaiting the issuance of process to compel him to do so. — McLeod v. Mason, 5 Porter, 223. A guardian of a non compos may commence a suit in the name of his ward, just as a guardian of a minor might. Section 2036 of the Code does not authorize a suit in the name of the guardian in every case» nor in a case like this. The qualifying phrase, “in all cases where the ward has an interest, and the judgment enures to his benefit”, limits the cases in which the guardian may bring the suit in his own name.

. In the case of Beale et al. v. Coon, (2 Watts’ R. 183,) Sergeant, J., in delivering the opinion of the court, says : “ All actions by or on behalf of a lunatic, placed by law in the care of a committee, must be in tbe name of tbe lunatic and tbe committee. Tbe latter must join, to manage tbe interests of one wbo is disabled to protect bimself; and tbe lunatic must be joined, because be may recover bis understanding, and then is to have tbe management and disposal of bis estate. He resembles, as to this, an infant, wbo always appears by guardian or next friend.” This adjudication is altogether in harmony with our statute law on tbe subject, and tbe views we have expressed thereupon. If tbe non compos is restored to soundness of mind, tbe statute provides for tbe restoration of bis property, and, of course, tbe discharge of bis guardian; and all suits would proceed in tbe name of tbe lunatic, and not of tbe guardian. If they were commenced in tbe name of tbe latter, tbe statute does not provide whether they shall abate upon tbe return of sanity, or bow they shall proceed to a final determination. However this may be, we bold in this ease, that' tbe record substantially shows that tbe account was filed in tbe name of tbe non compos guardian, by bis guardian, and that settlement proceeded to a final decree thereon, and that tbe appeal, as shown in tbe bill of exceptions, was taken in tbe same manner, and tbe security for tbe costs of tbe appeal is in substantial conformity to law. It is true, W. B. Modawell signs tbe obligation for costs of appeal, as guardian of Anderson Holmes; but this is mere descriptio persones, and does mot designate him as tbe appellant. Such an obligation is sufficient, without being executed by tbe appellant.

Without extending this review of tbe decisions and statutes upon this question, we are satisfied that, upon principle and tbe analogies of tbe law, tbe probate court bad jurisdiction to call tbe non compos guardian to a settlement, and to proceed, as above indicated, to a final decree ; and. having such jurisdiction, it may entertain it over an account filed by such guardian, by bis guardian or committee. And such, too, we are inclined to bold, would be tbe law with reference to tbe settlement of tbe administration of an administrator who became non compos after grant of letters and before a settlement.

. This view disposes of tbe 11th assignment- of error, and

also of tbe 10th, in connection with the assertion that the court below properly rendered a final decree against the non compos guardian; if any final decree against him should have been rendered, which will depend, perhaps, on the disposition which this court shall make of the questions raised by the other assignments of error. This conclusion, we are of opinion, is sustainable upon the authority of the case of Walker v. Clay & Clay, (supra,) and other cases cited.

3. The other assignments of error we will proceed to dispose of in the order in which they are presented on the record. The court charged the guardian with the value of a slave named Charles, who, it is contended, belonged to one W. C. P. Holmes, deceased, at his death, and upon whose estate Anderson Holmes, the guardian, administered; and his ward, William Holmes, was a distributee of that estate. It appears that Anderson Holmes, in 1854, made a settlement of his administration upon the estate of W. C. P. Holmes, deceased, which we hold, upon the face of the decree, to be a final settlement. It further appears that, prior thereto, under an order of court, the slaves belonging to W. C. P. Holmes, deceased, had been divided among the distributees; but no notice is taken of the slave Charles, nor was he accounted for on the final settlement,

We know of no principle of law, which authorizes the probate court, after a final decree upon a final settlement of an administrator, to charge the administrator, in any proceeding thereafter as such, or as guardian of a distributee, or in any other capacity, with assets of the estate not embraced in the settlement. That settlement is conclusive on all parties thereto, so long as it remains unreversed and in force. The final decree introduced in evidence is not void on its face, and cannot, therefore, be collaterally impeached. If the administrator fails to account for all property of the estate on a final settlement, the law provides a remedy to the distributees. — Code, §§ 1915, 1916. As to the parties to the record, a final settlement in the probate court must be treated as conclusive; and that court has no authority to review or revise in any way its final decree, after the expiration of the term at which it is rendered. — Slatter and Wife v. Glover, 14 Ala. 650; Watts et al. v. Gayle & Bower, 20 Ala. 817; Watt’s Adm’r v. Watt’s Distributees, 37 Ala. 546.

This disposes of tbe 1st and 6tb assignments, and tbe 2d, 3d, 4tb, and 5tb, may be considered together.

4. After a careful scrutiny of tbe evidence, we can not see tbat tbe court erred in charging tbe guardian with hire of tbe slaves for tbe year 1862,1863, 1864, and 1865, or tbe amounts charged for each year. On tbe other band, under tbe evidence, we are of opinion tbat tbe decision of tbe court was as favorable in its conclusion on this matter to tbe guardian as be bad any right to claim. We cannot say, upon tbe evidence, tbat, under tbe third section of tbe 26th ordinance of tbe convention of 1865, tbe court charged tbe appellant with more hire for those years than tbe appellee was “legally, justly, or equitably entitled to receive even if tbat ordinance has any appbcation to this case; nor can we take judicial notice of tbe extent of tbe j depreciation of tbe currency.

Tbe only ..exception taken as to a charge of compound interest, was tbat on the value of Charles; and as appellant is not chargeable, on tbe evidence, with tbat value, it follows tbat be was not with tbe interest thereon. Tbe 7th assignment seeks to raise a question which does not appear from tbe record to have been a “matter in dispute” in the court below, and we will not pass upon it.

5. Tbe court did not err in refusing to allow attorney’s fees. — Bates, adm’r v. Vary, adm’r, decided at present term.

As to tbe question propounded to tbe witness Corley, we deem it unnecessary to say anything, as it may not be asked again under tbe same circumstances or state of proof.

Eor tbe error in charging tbe guardian with tbe value of tbe slave Charles, tbe decree of tbe court must be reversed, and tbe. cause remanded.