Myer v. Rives

11 Ala. 760

• Court: Supreme Court of Alabama
• Decided: January 15, 1847
• Status: Published

Opinion

GOLDTHWAITE, J.

We are not prepared to say there . is no exception to the rule that guardians are not permitted to change the personal property of the ward into real estate, or vice versa. Indeed it seems to be conceded they may do so, under particular .circumstances. [2 Story’s Eq. § 1357. J But in the view we take of this subject, it is unimportant to decide this, or the question of authority under the will of William Myer. It is entirely evident that if this arrangement for the purchase of the slaves of the adult children on account of the infants would not be sustained by a court of equity, the funds paid out by the guardian either as such or in his capacity of administrator, remain as personal assets. In this connection, the settlement of the accounts by the defendant with the complainant Myer in the orphans’ court, and the receipt in full on account of the personal estate given by McQ,ueen is conclusive, as the statute expressly provides in relation to the first, that such settlements shall not be impeached except for fraud in obtaining the same, (Dig. 304, <§, 37,) and we apprehend the same consequences attach to a receipt given upon a settlement, when no advantage was taken and when the knowledge was mutual.

It is not pretended that the proof makes out any fraud, imposition, mistake or ignorance of facts; and hence we conclude the parties must be considered as waiving their strict right to an account of the sum invested on their account, even if that investment was not to be sustained on principle.

Decree affirmed.