Opinion
6 Div. 331.
May 11, 1933.
Appeal from the Circuit Court, Jefferson County; Hon. William M. Walker, Judge.
H. L. Anderton, of Birmingham, for petitioner.
The jurisdiction of probate and chancery courts is concurrent in matters of guardianship, and the guardian has the right to elect the forum in which he will make his settlement; the jurisdiction of neither having attached. Code 1923, § 8201; Ex parte Chapman, 225 Ala. 168, 142 So. 540. The guardian may have the administration of the guardianship removed from the probate to the chancery court, on sworn petition reciting it can be better administered in equity. Ex parte Chapman, supra. Sureties on the guardian's bond are not authorized by statute to remove the administration without averring a special equity. Ex parte Chapman, supra. The probate court has adequate jurisdiction. Pollock Co. v. Haigler, 195 Ala. 522, 70 So. 258; Code 1923, § 9503.
B. F. Smith, of Birmingham, for respondent.
The surety on a guardian's bond, on showing a fraudulent collusion between the guardian and ward, should be allowed to maintain a bill in equity for removal of administration and final settlement, notwithstanding the probate court may have taken jurisdiction for final settlement. Swope v. Swope, 178 Ala. 172, 59 So. 661; Ligon v. Ligon, 105 Ala. 460, 17 So. 89; Norton v. Norton, 94 Ala. 481, 10 So. 436; Hemphill v. Moody, 64 Ala. 468; Gamble v. Jordan, 54 Ala. 432; 21 C. J. 130; McCraw v. Cooper, 215 Ala. 51, 108 So. 850; United States F. G. Co. v. Harton, 202 Ala. 134, 79 So. 600; Watson v. White, 216 Ala. 396, 113 So. 260; Bean v. Harrison, 213 Ala. 33, 104 So. 244; Ex parte Chapman, 225 Ala. 168, 142 So. 540; Kimball v. Cunningham, 197 Ala. 631, 73 So. 323; Pollock v. Haigler, 195 Ala. 522, 70 So. 258; Dolan v. Dolan, 91 Ala. 152, 8 So. 491; Shackelford v. Bankhead, 72 Ala. 476.
The United States Fidelity Guaranty Company, as surety upon the bond of O. B. Custer, guardian, filed a petition with Hon. Wm. M. Walker to remove the settlement of guardianship from the probate to the chancery court of Jefferson county. The petition was granted, and the petitioner here seeks a mandamus requiring said Walker to vacate the order of removal.
It is, of course, well settled that the probate and chancery courts have concurrent jurisdiction in guardianship settlements, and, as held in the recent case of Ex parte Chapman, 225 Ala. 168, 142 So. 540, that the surety on the guardian's bond, while an interested party, has no right to remove the settlement to the chancery court without averring a special equity. The question here is, Does the petition to Judge Walker aver a special or independent equity so as to differentiate this case from the Chapman Case, supra? It not only avers a fraudulent collusion between the two guardians and the ward to procure an unjust decree against the surety, the principal being insolvent, but also seeks a discovery and an accounting of numerous and complicated matters peculiar to the powers and jurisdiction of the chancery court.
The writ of mandamus is denied.
THOMAS, BROWN, and KNIGHT, JJ., concur.