Cunningham v. Pool , 9 Ala. 615 ( 1846 )

COLLIER, C. J.

The mere fact that the guardian returned to the Orphans’ Court from time to time, a statement of the account between the ward and himself, the ordering of the same, by the court, to be recorded, and stating the balance upon the record according to the facts, is certainly not res adjudicata. It does not preclude either party from showing an error in such returns, or estop the court when called upon to adjust the accounts upon final settlement, from examining all the matters of debit and credit, from the time the guardianship commenced, and rendering such decree as may be proper, upon a view of all the facts. This conclusion seems to us to be so clear, that it is sufficiently illustrated by its statement.

The marriage of the ward, after these occasional returns were made and recorded, cannot be allowed to prejudice the guardian. The rights of the husband were only co-extensive with the guardian’s liability, and he is entitled to nothing more than the court would have adjudged if no marriage had taken place.

By air act passed in 1821, it is enacted, that “ in all cases where it may be necessary to have any matter depending before any of said courts, or the Judge thereof, on any return day, tried by a jury, the sheriff, by order of the Judge, shall forthwith summon and impannel a jury.” [Clay’s Dig. 303, § 32.] It has never been supposed that this enactment made it imperative upon the Judge to submit all disputed questions of fact in cases before him to the arbitrament of a jury. He must determine for himself in a case coming within the statute, whether it is necessary to call to his aid a jury, to enable him to pronounce the appropriate judgment; if he dispenses with such assistance, and adjudicates the facts, it is no ground for reversal of a decree, in other respects correct. The bill of exceptions does not inform us what were the facts touching the issues tendered; we cannot therefore undertake to revise the judgment of the Orphans’ Court upon this point, but must intend it was proper. See Dobbs, et al. v. Cockerham’s Distributee’s, 2 Porter’s Rep. 328.

The act of 1803, which prescribes the manner in which the accounts of executors, administrators, and guardians shall be taken, received, and credited, provides, that if no exception be taken to the judges report, the court “may decree an aL lowance of the account as stated; but if any person or persons, interested in the settlement of the said account, shall, by himself or attorney, appear and make exception to the report, the court shall either proceed to hear the proof and. allegations, and correct or amend the mistakes or error’s in the. account as reported, or refer the same to auditors, who shall examine and restate the account, after hearing parties and witnesses, and make report to the liext, or some subsequent term of the said court, for confirmation and allowance as aforesaid. [Cl. D. 226, § 27.] We think it entirely clear from this statute, that it is competent to offer oral testimony upon excep - tion to the stated account of a guardian, and the fact that an item was not supported by a voucher, will not. warrant the exclusion of evidence to support it.

A guardian is not bound by a declaration that he would not charge his ward for board, or other service he may have rendered her. Such a remark being merely casual, and founded upon no consideration, must be treated as entirely gratuitous; consequently it will be competent for the guardian to exhibit an account embracing these items of charge. It is perfectly clear, that the statute of limitations cannot bar a credit, to which the guardian would be otherwise entitled.

It was certainly proper, that the charges for the board of the ward, and other necessary expenditures of money for her benefit, should be placed to the credit of the guardian, as of the year when her estate became chargeable with them; He could not, with any propriety, be made liable for interest upon the ward’s money in his hands, while at the same time what was due to him, should stand over to be brought forward as a credit for the first time, (and this too without the addition of interest,) upon the final settlement of accounts. The mode of computing interest in this case, was certainly equitable, and in conformity to usage. It does equal justice to the debtor and credit side of the account, by computing interest against both guardian and ward, from the time either became chargeable to the other, and striking a balance according as it may be.

In respect to the taxation of costs, so far as objected to, it may be said, that the statute does not direct who shall pay them, or whether, where the litigation is bona fide, the estate shall be charged with them. It certainly cannot be assumed from the record, that injustice has been done the plaintiff in error, by directing each party to pay his own costs, and we cannot undertake to say that the point has been determined unwisely, or against law, so far as it concerns the parties. But if the court erred in this respect, does an error in the taxation of costs, authorize the reversal of its, decree ?

Our conclusion, from a view of all the points raised, is, that the decree of the Orphans’ Oortrt must be affirmed.