Searcy v. Holmes

Supreme Court of Alabama

Searcy v. Holmes

43 Ala. 608

Supreme Court of Alabama·Decided June 15, 1869·Published·Cited by 2 cases

Opinion

B. E. SAEEOLD, J.

Section 2232, Eevised Code, requires the settlement of the accounts of an administrator who has been removed, to be made in the same manner as other settlements of administration. Section 2140 directs the manner of giving notice ; one of the modes of which is, by publication in a newspaper in the county, if there be one.

Section 3138 requires the court to appoint a guardian ad litem to represent the interest of the minors. This appointment, and the acceptance of it, have been • held by this court to be indispensable to the validity of the decree. Laird, Adm’r, v. Reese, at the January term, 1869; Frierson v. Travis, 39 Ala. 150; Jenkins’ Distributees v. Jenkins’ Adm’rs, 16 Ala. 693. It does not appear from the transcript in this case that such appointment was made, or that [610] any of those interested in the settlement of the estate, were, represented, except the administrator de bonis non. It is unnecessary to consider any other assignment of error, but it may not be amiss to say that when notice is given by posting only, the reason why that mode is resorted to should be stated.

Note by Reporter. — At a subsequent day of the term, appellee applied for a rehearing, to which the foliowicg response was made : B. F. SAFFOLD, J. — The application for a rehearing is based on the ground that infant heirs are not parties to the final settlement of the accounts of a removed administrator. An administrator who has been removed, is required to make a statement of the heirs and legatees, and to settle his accounts, as in other cases of final settlement. Revised Code, § 2232. Y^hy this, if such parties are not necessary ? They have a deep interest in seeing that the accounts of the outgoing administrator are correct, and that the estate has not suffered by his management. — Revised Code, § 2236. It is the duty of the court to appoint guardians ad litem for them. — Section 2138. The administrator de bonis non is not responsible for the maladministration of his predecessor. A rehearing is denied.

Let the judgment be reversed and the cause remanded.

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B. E. SAEEOLD, J.

Section 2232, Eevised Code, requires the settlement of the accounts of an administrator who has been removed, to be made in the same manner as other settlements of administration. Section 2140 directs the manner of giving notice ; one of the modes of which is, by publication in a newspaper in the county, if there be one.

Section 3138 requires the court to appoint a guardian ad litem to represent the interest of the minors. This appointment, and the acceptance of it, have been • held by this court to be indispensable to the validity of the decree. Laird, Adm’r, v. Reese, at the January term, 1869; Frierson v. Travis, 39 Ala. 150; Jenkins’ Distributees v. Jenkins’ Adm’rs, 16 Ala. 693. It does not appear from the transcript in this case that such appointment was made, or that [610] any of those interested in the settlement of the estate, were, represented, except the administrator de bonis non. It is unnecessary to consider any other assignment of error, but it may not be amiss to say that when notice is given by posting only, the reason why that mode is resorted to should be stated.

Note by Reporter. — At a subsequent day of the term, appellee applied for a rehearing, to which the foliowicg response was made : B. F. SAFFOLD, J. — The application for a rehearing is based on the ground that infant heirs are not parties to the final settlement of the accounts of a removed administrator. An administrator who has been removed, is required to make a statement of the heirs and legatees, and to settle his accounts, as in other cases of final settlement. Revised Code, § 2232. Y^hy this, if such parties are not necessary ? They have a deep interest in seeing that the accounts of the outgoing administrator are correct, and that the estate has not suffered by his management. — Revised Code, § 2236. It is the duty of the court to appoint guardians ad litem for them. — Section 2138. The administrator de bonis non is not responsible for the maladministration of his predecessor. A rehearing is denied.

Let the judgment be reversed and the cause remanded.

Searcy v. Holmes, 43 Ala. 608 (Ala. 1869).

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Opinion

B. E. SAEEOLD, J.

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