Wilson v. Wilson

36 Ala. 655

• Court: Supreme Court of Alabama
• Decided: June 15, 1860
• Status: Published

Opinion

STONE, J.

In the present case, we have to deal with two guardianships, two administrations, one suit in chancery, two or more transfers from one court to another, and several renewals of bonds. Hence, if the record had been made out with the strictest regard to method, the questions presented would necessarily have been complicated. The complication of the case, however, is much increased, by a very great, disregard, in the preparation of the record, of the proper connection of both subjects and dates. We forbear to particularize, but feel justified in saying, that should another record come before us in the condition in which we find the present one, we will, ex mero motu, reject the record, without costs for its preparation, and require a correct one to be made by the officer on whom the duty rests.

The direct questions presented for review in the present record, arose on the final settlement of John B. Wilson, the appellant, of his guardianship of the person and estate of Martha J. Wilson, the appellee. Several preliminary questions, however, arose. Among them is the charge, that the presiding judge of the probate court of Shelby was interested in the subject-matter of the settlement, and therefore incompetent to try the cause. To make out this interest, the appellant is forced to take, and does take another position — to-wit, that certain proceedings in the pi’obate court, in the circuit court of Shelby, and before the register in chancery for that county, hereafter noticed, are void.

The claim of Miss Martha J. Wilson consists of moneys and effects in the hands of her former or present guardian, or in the hands of the administrators of the estate of her father, IL IT. Wilson, from whose estate the property came. In 1841, Benjamin F. Randall and John W. Roper were appointed administrators of said II. II. Wilson’s estate, and gave a joint bond; and the present probate judge of Sbelby county, we suppose, became one of their sureties on said administration bond. Being, as we suppose, at one time bound as the surety of Randall and Roper, it follows that, unless he has been discharged as such surety, he is incompetent from interest to preside in any trial or controversy, the result of which will be to fix a liability on said administrators, or to discharge them from sucb liability. In such contest he has such an interest as not only disqualifies him from presiding, but would render any judgment prononneed by him void, — Act of 1850, Pamph. Acts, 3,6, §40; Code, § 560; State, ex rel. Claunch v. Castleberry, 23 Ala. 85; Heydenfeldt v. Towns, 27 ib. 423, 439.

All the orders and judgments had and rendered in this cause, since the first stages of the administration, and .since the appointment of the first guardian for Miss Wilson, after noticed, have been during the official term of the present probate judge. It follows from the rule above laid down, that Judge McClanahan, if one of the sure ties, was incompetent from interest to make any order, which affected the liability of the administrators, under their bond to which he was a surety. — Lyon v. State Bank, 1 Stew. 442, 463-4; Lister v. Vivian, 8 Porter, 375; Woodruff v. Bank, 4 Ala. 294; Bond v. Smith, 2 ib. 660; Earl of Derby’s case, 12 Coke, 114; Dimes v. Grand Junction Canal Co., 16 Eng. Law & Eq. 63; Bank v. Fitzsimmons, 2 Bin. 454; Steamboat Company v. Livingston, 3 Cowen, 724; Underhill v. Dennis, 9 Paige, 202; Paddock v. Wells, 2 Barb. Ch. 331; Palmer v. Lawrence, 1 Sel. 389; Nettleton v. Nettleton, 17 Conn. 542; Hawley v. Baldwin, 19 ib. 585; Murphy v. Barlow, 5 Por. (Ind.) 230; Knight v. Hardeman, 17 Geo. 260; Pearson v. Hopkins, 1 Pen. (N. J.) 195; Ten Eyck v. Simpson, 11 Paige, 177.

In 1850, Mr. Boper having died, his representatives filed their account-current in the probate court, for final settlement of his administration. At the same time, certain of the sureties moved in said court that B. F. Bandall, the other administrator, be required to renew his bond as administrator, and thus to discharge them. Notices of these applications were given; and the judge of probate, stating in his orders that he was incompetent, in the one case “ to make said settlement,” and in the other, “to adjudicate the same, and pass on said settlement,” transferred both of said cases and questions to the circuit court for adjudication.

In the circuit court of Shelby county, at the fall term, 1851, said final settlement was taken up, and disposed of; the judgment entry reciting' — “The judge of the probate court of said county, from iucompetency to settle this administration, he having been one of the executors of said John W. Boper’s last will and testament, and having transferred this settlement from said probate court to this court, the same came on,” &c. A decree was thereupon rendered, in favor of said B. F. Bandall, as surviving administrator, against the executors of John W. Boper, which, the record tends to show, was afterwards paid up.

At the same term, and in the same order, the circuit court took and approved a new administration bond from said B. F. Bandall, with G. M. Bandall, Lewis Bowrdon, and J. A. Simpson, as sureties; and discharged J. M. Mc-Clanahau and Samuel Brasher as sureties of said Bandall on Ms administration bond. These orders bear date 18th September, 1851.

The two orders last noticed — the settlement of John W. Roper’s administration, and the taking of the new bond, with the discharge of the sureties, McCl'anahan and Brasher — were made under the act approved Peb. 11th, 1850. — Pamph. Acts, 36.

The authority of the circuit court, under the act of 1850, and of the register in chancery, under section 560 of the Code, to adjudge controversies wMch belong of right to the1 probate court, is of the class called limited and statutory. To uphold the jurisdiction, the record must affirmatively show the right of the court to proceed in the given case. — Lister v. Vivian, 8 Porter, 375; Woodruff v. Bank, 4 Ala. 292; King v. Shackleford, 13 ib. 435; Talliaferro v. Brown, 11 ib. 702; Hall v. Wilson, 14 ib. 295; Butler v. Foster, ib. 323; Reynolds v. Reynolds, 11 ib. 1023; Willis v. Willis, 9 ib. 330; Brazeale v. Brazeale, ib. 491, 496; Cloud v. Barton, 14 ib. 347; Taliaferro v. Bassett, 3 ib. 670; Robinson v. Steele, 5 ib. 473; Clarke v. West, ib. 117; Lambeth v. Garber, 6 ib. 870 ; Bishop v. Hampton, 15 ib. 761; Bond v. Smith, 2 ib. 660; Driver v. Hudspeth, 16 ib. 348; Jenkins v. Jenkins, 16 ib. 693; Willis v. Willis, ib. 652; Croft v. Ferrill, 16 ib. 351.

The questions arising on the orders made in the circuit court of Shelby, came up collaterally in the trial of this cause in the court below; and hence, if that court acquired jurisdiction of the questions, we need not inquire whether the after proceedings were regular, or free from error. Irregularity of proceedings could only be noticed on direct appeal; want of jurisdiction would render the proceedings void. — Wyman v. Campbell, 6 Porter, 219; King v. Kent, 29 Ala. 542; authorities collected in Hunt v. Ellison, opinion of Stone, J., 32 Ala. 193; Key v. Vaughn, 15 Ala. 497; Willis v. Willis, 16 ib. 652; Davis v. Davis, 10 ib. 299.

The order of transfer to the circuit court, the validity of which-we are considering, was made under the 40th section of the act of 1850, which, after declaring that no judge of probate shall act upon the determination of any canse or proceeding, &c., in which he is interested, &c.y proceeds to direct that, in such cases, the cause or proceeding shall be commenced, or transferred, as the case maybe, to the circuit court'of the proper county, &e. In the present case, the circuit court recited in its judgment entry, that the judge of probate was incompetent to settle this administration, he having been one of the executors of said John "W. Roper’s last will and testament. ¥e can not, in this pi’oceéding, inquire whether' this recital is true or false. It was a judicial áscertaiument of the fact necessary to give the court jurisdiction; and inasmuch as, under the act of 1850, the proceedings may be commenced in the circuit court, when the probate judge is interested, the recital gave the circuit court jurisdiction. — See Hamner v. Mason, 24 Ala. 480; King v. Kent, supra; Heydenfeldt v. Towns, 27 Ala. 431; Hamilton v. Williams, 26 ib. 584. Hence, we need not in this place inquire whether the order of transfer made by the probate court was or was not sufficient.

It results from what we have said, that the orders and decrees made by the circuit court were not void, and that on this settlement they were conclusive. This-includes the final settlement of Roper’s administration, -the new bond taken from Randall, and the discharge of the sureties.

Looking into the record, we suppose that the recital that the probate judge was one of the executors of John W. Roper’s will is an error. He seems to have been one of the sureties on the bond of Randall and Roper as administrators of H. H. Wilson’s estate. This as effectually disqualified him from presiding on the settlement of either of said administrations, as did the cause recited by the circuit court. This disqualification extended farther, perhaps. The discharge of the sureties of the first administration, or first guardianship, did not necessarily absolve them from liabilities incurred before their discharge. — See Williams v. Harrison, 19 Ala. 277, 284-5; Hamner v. Mason, supra; Carroll v. Moore, 7 Ala. 615; Phillips v. Brazeale, 14 ib. 746; Chilton v. Parks, 15 ib. 671. Serious questions may, and probably will, arise in the settlement of Benjamin E. Randall, as administrator of the estate of H. IL Wilson, deceased, and of his guardianship of Martha J. Wilson, which will, directly or indirectly, affect his sureties on the first administration bond. We confess ourselves the advocates of the doctrine, that judicial officers should abstain from the trial of causes in which they have the smallest pecuniary interest. Nothing so upholds civil society, so challenges public confidence, as a pure and incorruptible judiciary; — Hawley v. Baldwin, 19 Conn. 585; Ten Eyck v. Simpson, 11 Paige, 177 ; State, ex rel. Claunch v. Castleberry, supra.

In the present case, assuming that the probate judge was one of the sureties on the first administration bond, (of which fact the identity of name is the only evidence,) we think he rightly declined to entertain jurisdiction of the settlement of the administration, and of the settlement of Randall’s guardianship, which necessarily brought up the question of the discharge of the administrators. In other words, Randall’s liability as guardian, and the extent of it, depended on the extent to which he had administered on the estate in his hands, and had transferred the funds from the administration to the guardianship. Davis v. Davis, 10 Ala. 299; Childress v. Childress, 3 ib. 752; McLane v. Spence, 6 ib. 894; Duffee v. Buchanan, 8 ib. 27; Purdom v. Tipton, 9 ib. 914; King v. Shackleford, 13 ib. 435; Williams v. Harrison, 19 ib. 277, 284-5.

The subsequent orders of transfer of the settlement of Randall’s administration, and of his guardianship, were made under the provisions of the Code, which read as follows: “§ 560. No judge of any court, chancellor, county commissioner, or justice, must sit in any cause or proceeding in which he is interested, or related to either party within the fourth degree of consanguinity or affinity, or in which he has been of counsel, without the consent of the parties, entered of record, or put in writing if the court is not a court of record.” Sections 1910,1911,1912, of the Code, point out the mode of proceeding in such cases.

The orders of transfer in these cases, made by the judge of probate, simply recite that the judge is incompetent, without stating any fact, or conclusion of fact, which shows the incompetency. Incompetency to preside is a conclusion of law from given facts. If the order had recited, that the judge was interested in the settlement, had been of counsel, &c., this would have brought the case directly within the statute, and would have supported his conclusion that he was incompetent. There is noth, ing in the proceedings before the register which aids this imperfect certificate of the judge of probate. The only mention there made of the subject is, that the judge o’f probate is incompetent, and that he, the register, is sitting for the judge of probate. This is insufficient, under the rule above laid down, to sustain a limited, special, statutory jurisdiction. — Butler v. Butler, 11 Ala. 668; Hartley v. Bloodgood, 16 ib. 233; Cullum v. Branch Bank, 23 ib. 797; Keiffer v. Barney, 31 ib. 193; Clark v. Gilmer, 28 ib. 285; Dow v. Whitman & Ousley, at present term.

Erom the principles above stated it results, that neither the administration of the said Randall, nor his guardianship for Miss Wilson, has ever been settled, because the register in chancery never acquired rightful jurisdiction of said settlements.

It does appear, however, that Mr. Randall was removed as guardian, after proper notice, by an order of the probate court, made at the November term, 1856. This order appears regular, and there is nothing in the record which shows the probate judge disqualified by interest or other cause from making the order. It also appears that John B. Wilson was regularly appointed guardian for Martha J. Wilson, by the judge of probate, and his bond approved Nov. 17th, 1856; and that his letter of guardianship was revoked by the same authority, at the August term, 1857. It is thus shown that John B. Wilson remained guardian for Miss Wilson, between eight and nine months. It is not necessary we should inquire in this case what diligence he did or did not employ in collecting, or attempting to collect, the property of his ward. See Williams v. Harrison, supra. It is manifest that much of the evidence against him on the trial of this cause, consisted of proceedings before the register, which were void; and that without those proceedings, the evidence did not justify the decree which was rendered. Hence, we deem it unnecessary to consider any other questions.

Whether the present appellant has incurred any liability, by failing to recover the property or moneys of his ward, while he was her guardian, we do not determine. ■All we decide is, that the evidence in this record does not support the decree; and that in the condition in which the administration of II. II. Wilson’s estate now stands, the present probate judge of Shelby county, if he was a surety on the ■ first administration bond of Randall and Rojjer, is incompetent to preside on this settlement.

The decree of the probate court is reversed, and the cause remanded.

A. J. Walker, C. J., not sitting.