Landreth's Adm'r v. Landreth's Distributees , 9 Ala. 430 ( 1846 )

COLLIER, C. J.

In the transcript filed in this cause, there is an order of the Orphans’ Court of Cherokee, purporting to have been made on the 7th December, 1840, by which John Lowry was appointed the guardian of the children of the intestate, who were under the age of fourteen years. There is also a bond, bearing date, in the usual form of that executed by guardians, signed and sealed with the names and seals of Lowry and several others, as his sureties. By what warrant this order and bond are sent here, as a part of the record, does not appear, and we cannot regard them as regularly before us. The decree does not refer to them, or in any manner admit the fact of Lowry’s guardianship, while the bill of exceptions expressly affirms that there was no proof of it, other than the receipts signed by him in that character imports; nor was there any evidence that the money paid to the assumed guardian, had been appropriated to the benefit of the infant children of the deceased.

We cannot then regard the part of the transcript referred to, as any part of the record. Even if the decree recited it as evidence before the Orphans’ Court, the bill of exceptions would perhaps prevent us from so considering it; for it has been strongly intimated, that where the judgment entry recites the facts differently from a bill of exceptions certified in a cause, the latter will control the former. [Godbold, et al. v. P. & M. Bank of Mobile, 4 Ala. Rep. 516.]

There is then, nothing in the record to show that Lowry was guardian of the intestate’s children; this is an affirmative fact .which it devolved Upon the administrator to prove, unless it was admitted by those competent to make the admission. The appointment of a guardian by the court which granted letters of administration, did not so amalgamate the proceedings touching the duties of the administrator and guardian as to make them the record of the cause made by the settlement of the administration accounts. They could only be made such by order of court, or bill of exceptions.

The plaintiff' in error then, for any thing shown to the contrary, made payments from the estate of his intestate to one who had no authority to receive them. He is certainly responsible for what he thus disposed of. No objection to the 'decree in any other respect has been insisted on, and none has suggested itself to us. The judgment of the Circuit ’Court is consequently reversed, and this court rendering such judgment as should have been there rendered, affirms the decree of the Orphans’ Court.