Croft v. Terrell , 15 Ala. 652 ( 1849 )

COLLIER, C. J.

It appears from the record, that publication was ordered to be made for three months, as directed by the act of 1843, (Clay’s Dig. 230, § 47,) requiring the plaintiff in error to file his accounts and vouchers for final settlement ; but it is not shown that publication was made according to the order. The omission to discover that such was the fact, would be a fatal error, but for the appearance of the guardian, which we think would cure it. Speight v. Knight, 11 Ala. 461. In respect to the notice consequent upon a statement of the guardian’s account, if any was necessary, it appears to have been given by three weeks’ publication in a newspaper j this was quite sufficient. Clay’s D. 226, sec. 27; Williamson et al. v. Hill, 6 Por. Rep. 184; Davis v. Davis et al. 6 Ala. Rep. 611.

The assignment, which denies that it appears the guardian derived his appointment from the orphans’ court of Chambers, is not sustained by the record, which expressly alleges the reverse. See, however, Speight v. Knight, 11 Ala. R. 461.

By the act of 1830, it is enacted, that all decrees made by the orphans’ court, on final settlements of guardians, &c., shall have the force and effect of judgments of law, and executions may issue thereon for the collection of the several distributive amounts : Further, each distributee, &c., shall have his writ of execution or attachment against the guardian, &c. The act of 1832 provides, that on such settlement, the orphans’ court “ shall insert in their decree the amount of the several distributive shares.” Clay’s Dig. 304-5, § 42-3-4. In the case before us, the decree does not ascertain to what sum each of the distributees is entitled, but adjudges the aggregate amount in the guardian’s hands, to all of them jointly. It is clear that such a decree does not conform to the statutes cited, and if it could be sustained, would leave the several interests of each for future adjustment. An execution would conform to the decree, and issue in the joint names of all of them; or if one or more of them were to die, upon a regular suggestion of that fact, would issue in the names of the survivors, thus authorizing each to enforce the collection, not only of what was due to himself, but what belonged jointly to all. The settlement and decree against the guardian, should have severed the interests of the wards. Here is an irregularity which this court cannot correct, by an amendment making the decree several ,• for it cannot be assumed that each of the wards is entitled to an equal proportion of what remains in the guardian’s hands, and there is nothing in the record imparting information on the point.

In respect to the female wards who have married, the decree should be in favor of themselves and their husbands, severally, for the use of the wives; and if any of the legatees are minors, they should be adjudged to recover by their guardians, but the record does not show such to be the condition of any of them. Key, adm’r of Seward v. Vaughn and wife et al., at this term. But if the decree was otherwise regular, this error would be here corrected, at the costs óf the plaintiff in. error.

For the errors noticed, the decree of the orphans’ court, is reversed, and the cause remanded,