Hudson v. Parker , 9 Ala. 413 ( 1846 )

COLLIER, C. J.

Conceding it to have been competent for the Orphans’ Court to have permitted the deduction from the charges made in the guardian’s account against himself, it is quite enough to say, that there is nothing in the record to show that the error suggested, did in point of fact exist. We cannot then know that the court did not decide correctly, and must rather intend in favor of the decree. It is an acknowledged principle, that the party alledging an error, must show its existence, and presumptions cannot be indulged prejudicial to the judgment of the primary court.

In Crenshaw v. Hardy, 3 Ala. Rep. 653, it was held, that where an infant ward marries, and the accounts of her guardian are audited and reported for final settlement, a decree for a balance in his hands must be rendered in favor of both the husband and wife. In that case a decree in favor of the husband alone was reversed on error. It is insisted for the defendant in error, that in the present case, the decree is, in effect, in favor of himself and wife. True, it recites that the' guardian is indebted to the husband in right of his wife, and' it is adjudged that he recover in her right. This is nothing more than.is shown by the entire record, viz : that the liability of the guardian results from his accountability to the: wife — that from her, as the meritorious cause, the right of recovery emanates. The decree is in favor of the husband alone — and execution upon it would issue in his name, if he were to die, in favor of his representatives, and not his wife.

It results from this view, that the judgment of the Orphans! Court must be reversed, and the cause remanded.