Summary
holding that the next of kin of a deceased ward did not have the absolute right to remove the administration of a guardianship proceeding from the probate court to the circuit court because the predecessor statute to § 26-2-2 did not include next of kin in the list of persons granted that absolute right
Summary of this case from Miles v. HelmsOpinion
7 Div. 862.
June 13, 1946.
Appeal from Circuit Court, Etowah County; W. M. Rayburn, Judge.
Dortch, Allen Swann, of Gadsden, for appellant.
Right to remove guardianship of person of unsound mind from probate to equity court without any special equity is given by statute only to the ward, next friend of ward and persons entitled to support out of ward's estate. Code 1940, Tit. 21, § 26. Death of the ward terminates the guardianship and only duty remaining on the guardian is to make proper accounting and settlement in probate court. 39 C.J.S., Guardian Ward, p. 61, § 41. Upon ward's death, the relationship of debtor and creditor becomes established between the guardian and the ward's personal representative, and the guardian is accountable to such representative and not to the heirs of decedent direct. 39 C.J.S., supra. The probate court has jurisdiction of final settlements of guardianships of persons of unsound mind, and in absence of any special equity retains jurisdiction to the exclusion of chancery, except as otherwise provided by statute. Martin v. Cameron, 203 Ala. 548, 84 So. 270. Not even the ward restored to sanity is entitled to the ward's property until after settlement. Ward v. Stallworth, 243 Ala. 651, 11 So.2d 374. Final settlement proceedings in guardianship having been commenced in the probate court, it is error to order removal to chancery. Mobbs v. Scott, 233 Ala. 70, 169 So. 698. At the death of intestate it becomes the duty of the personal representative, not heirs, to take possession of all assets of decedent including collection of choses in action, which latter may not be done at once, but within a reasonable time. Code, Tit. 61, § 189; 33 C.J.S., Executors and Administrators, §§ 167, 168, p. 1136; Webb v. Sprott, 225 Ala. 600, 144 So. 569. Court order is not prerequisite to every disposition of personal estate of ward by guardian, and averment that he has so disposed of some of assets is not recital of a special equity authorizing removal of guardianship to chancery. Bank of Guntersville v. U.S. F. G. Co., 201 Ala. 19, 75 So. 168. Mandamus is permitted to review interlocutory orders and decrees in chancery where review on final appeal would not afford adequate relief. Rowe v. Bonneau-Jeter Hdw. Co., 245 Ala. 326, 16 So.2d 689; Ex parte Chapman, 225 Ala. 168, 142 So. 540. Mandamus is proper remedy for refusal to vacate void order. Crabtree v. Miller, 229 Ala. 103, 155 So. 529; Ex parte Chapman, supra; Blach Sons v. Hawkins, 238 Ala. 172, 189 So. 726.
L. B. Rainey, of Gadsden, for appellees.
Probate court has jurisdiction of final settlement of guardianship and in absence of special equity will retain it to exclusion of chancery; but where there is special equity jurisdiction on account of elastic powers of latter court not possessed by former, chancery will assume jurisdiction and remove settlement from probate court into chancery. Martin v. Cameron, 203 Ala. 548, 84 So. 270. Statutory jurisdiction is not so comprehensive as that of chancery or of courts possessing chancery power, which, treating a guardianship as a delegated trust for the benefit of the ward, will interpose, if there is abuse of the trust or danger of abuse, not only by way of remedial but of preventive justice. 9 Ency. Pl. Pr. 1918; Hall v. Lay, 2 Ala. 529; Lee v. Lee, 55 Ala. 590; Davis v. Dickson, 2 Stew. 370. A guardian cannot expend any portion of the capital or principal of his ward's estate without first having obtained leave of court, usually by an order. Bryant v. Craig, 12 Ala. 354; Stewart v. Lewis, 16 Ala. 734; Calhoun v. Calhoun, 41 Ala. 369. A guardian's alienation of ward's personal estate or investments made without judicial sanction are in violation of his trust and obligation. Stewart v. McMurray, 82 Ala. 269, 3 So. 47. Any matter affecting a minor may become the subject of chancery jurisdiction, and it is immaterial whether that jurisdiction is invoked by bill, petition or other pleading. The same is true as to a non compos mentis. First Nat. Bank v. Robertson, 220 Ala. 654, 127 So. 221. A court of equity has general jurisdiction of estate for due protection of parties in interest, on due insistance. Hamilton v. James, 231 Ala. 668, 166 So. 425. Mandamus will not lie where there is another remedy. Arrington v. Van Houston, 44 Ala. 284; Ex parte Clements, 50 Ala. 459; Ex parte Wright, 225 Ala. 220, 142 So. 672; Ex parte Edwards, 20 Ala. App. 567, 104 So. 53; Johnson v. Westinghouse, C., K. . Co., 209 Ala. 627, 96 So. 884; Johnson v. J. G. White Eng. Corp., 210 Ala. 698, 97 So. 923; Ex parte Cox, 230 Ala. 158, 160 So. 230; Ex parte South N. Ala. R. Co., 65 Ala. 599.
The proceedings here complain of an order of the circuit court in equity removing the administration of the guardianship of appellant guardian from the probate to the equity court.
The ward is dead and it only remains for the guardian to undertake his statutory duty of making a final settlement of his guardianship.
The appellees, on whose application the order of removal was made, are the next of kin of the deceased ward and the right of the several persons designated in the statute to remove a guardianship administration to the circuit court in equity, without assigning any special equity, is not accorded them. Code 1940, Title 21, § 26.
There being no absolute right of removal then, in the absence of a special equity or circumstances where the remedy or relief would be inadequate, the probate court has jurisdiction of the final settlement of the guardianship and will retain such jurisdiction to the exclusion of equity. Martin v. Cameron, 203 Ala. 548, 84 So. 270; Ex parte Chapman, 225 Ala. 168, 142 So. 540; Lee v. Lee, 55 Ala. 590.
The intervening or special equity claimed here, to invoke the powers of that court to supplant the jurisdiction of the probate court, is the following alleged misconduct of the guardian: He has misappropriated the trust funds and made unreasonable investments thereof, has failed to keep proper records of expenditures or to make due accounting of same, has expended monies of the ward without taking proper receipts or without obtaining the court's authorization and has invested funds of the ward in the purchase of land without court order and without receiving an abstract of title or a legal opinion verifying the title to such property.
We do not think the averred circumstances assert a sufficient equity to oust the jurisdiction of the probate court and are of the opinion the order of removal was laid in error. No defalcation or breach of trust is alleged which cannot be efficaciously adjusted in the probate court, nor is any complicated accounting, settlement of a trust, construction of instruments or adjustment of property rights or titles shown to be involved, as is mentioned in our cases as intervening equities for the interposition of equity, to deny the statutory jurisdiction of probate.
The guardian is also the administrator of the estate of his deceased ward and, earlier in our jurisprudence, when the two trusts had been thus united in the same fiduciary, the probate court was without jurisdiction to call the guardian to account in a final settlement of the guardianship, the remedy being by bill in equity to adjust both accounts. Carswell v. Spencer, 44 Ala. 204; Hays v. Cockrell, 41 Ala. 75; Hutton v. Williams, 60 Ala. 107; 39 C.J.S., Guardian and Ward, § 196, p. 346.
The basic reason as noted in Corpus Juris Secundum was that any decree rendered in such a case must necessarily be rendered in favor of the guardian in his character of administrator, and, as no judgment or decree could be rendered for and against the same party, such a judgment or decree, if rendered, would have been a nullity. 39 C.J.S., Guardian and Ward, § 196, page 346.
At the time of the enunciation of this principle, our statute for the appointment of an administrator ad litem in case of the administrator's adversity of interest made no provision for the rendition of a judgment or decree in favor of the administrator ad litem for the use of the estate (Acts of Alabama 1863, No. 65, page 65) and as indicated in Hays v. Cockrell, 41 Ala. 80, 81, his duties were "analogous to that of a guardian ad litem, in similar cases; and from his position and interest in regard to the litigation, no valid decree could be rendered in his favor." Of consequence, the two trusts had to be settled and determined in a court of equity.
The law was later amended, however, obviating the defect and the rule of our earlier decisions no longer prevails. Now, "when, in such proceedings, the estate represented by the administrator ad litem is entitled to a decree for the recovery of money, or for the possession of real or personal property, such decree shall be rendered in favor of the administrator ad litem for the use of the estate." Code 1940, Title 61, § 166.
The probate court, therefore, now has jurisdiction of such settlements and as indicated in our later decisions, the purpose of the present statute for the appointment of an administrator ad litem where the administrator is adversely interested is to confer jurisdiction on the probate court to make settlements in such cases and to relieve against the necessity of a resort to a court of equity. Faulk v. Money, 236 Ala. 69, 181 So. 256; Ex parte Baker, 118 Ala. 185, 23 So. 996.
Some modern texts have declared on the principle of our earlier cases as being the prevailing rule in this jurisdiction, and we have thought this discussion appropriate for clarification.
The case comes here by appeal with alternate petition for writ of mandamus to be directed to the circuit judge to vacate and annul the order of removal. The order is not appealable so the appeal will be dismissed. Mandamus, however, is the proper remedy (Ex parte Chapman, supra) and the writ is awarded.
Appeal dismissed and writ awarded.
GARDNER, C. J., and BROWN and LIVINGSTON, JJ., concur.