Spies v. Stikes

112 Ala. 584

Opinion

McCLELLAN, J.

The action of the probate court in disallowing Spies’ claim of $1,000 as for a one-fifth part of the proceeds of insurance policies or benefit certificate inuring to the children of Augustus Stikes, deceased, is fully supported by adjudications of this court. — Melmetag’s Admr. v. Miller, 76 Ala. 183 ; Stoelker v. Thornton, 88 Ala. 241.

The probate court refused to allow Spies any commissions. The fact that the guardian failed to make the partial settlements required by section 2454 of the Code does not justify the action of the probate court in disallowing his commissions, it not appearing that injury 'resulted to the estate from such failure, and mala fides not being shown in respect thereto. — Craig v. McGehee, 16 Ala. 41; Neilson v. Cook, 40 Ala. 498.

The failure of the guardian to make final settlement upon the coming of age of the wards was negligence, of course; and his failure to respond to the citation in consequence of which he was attached as for contempt and brought, a prisoner, before the court, was nothing less than a willful default. Still the estate, so far as appears in the record before us, was not injured in any way by such negligence or willful default in respect of making final settlement; and under the rule established by this court the guardian to deprive himself of right of commissions must have been guilty of gross negligence or willful default, whereby injury has resulted to the estate. — Smith v. Kennard, 38 Ala. 695, 702, and cases there cited. The .court erred in disallowing the guardian’s claim for commissions.

The proposed testimony of J. H. Tindall as to “the features of difference between the ordinary life insurance policy, and the certificates of the cooperative mutual benefit associations,” &c., was properly excluded.

Reversed and remanded.