Kelly v. Smith , 15 Ala. 687 ( 1849 )

COLLIER, C. J.

!< The judge of the county court of the county in which such judge resides, is empowered and required, to take, receive and admit all accounts of executors, administrators and guardians, &c.; to appoint guardians to minors, of their own election, &c.” Clay’s Dig. 226 § 27. So when, and as often as there shall be occasion, he is empowered “ to allow of guardians that shall be chosen by minors of fourteen years of age, and it shall be lawful for the said court to appoint guardians for such as shall be within, or under that age.” Clay’s Dig. 267 § 1. Guardians are required to give bond with surety for the faithful execution of their trust, to return an inventory of the estate of their wards, to exhibit their accounts, &c. “ Any guardian who shall not deliver in such inventory, or render such account, shall, by order of the orphans’^court, to which he is answerable, be summoned, and if he remain in default, compelled to perform his duty, or be displaced. And the said court may for any good and sufficient cause, displace a gusirdian, giving such guardian fourteen days previous notice, by citation, to appear and show cause why he should not be displaced.” Clay’s Dig. § 2, 3, 4.

These are all the statutes which are at all pertinent to the case before us. There is certainly nothing in the language in which they are expressed, requiring a notice to be given to the guardian elected by the orphans’ court, for an infant of tender years, in order to authorise the allowance of such guardian, as the infant may choose upon attaining the age of fourteen years. The appointment of the court can interpose no objectian as a matter of right, to the choice of his ward, if the ward has arrived at that age which entitles him to choose a successor. Here it is explicitly conceded in the petition, that there is no objection to the allowance of the second guardian, upon the ground of want of age. The act which directs that fourteen days notice shall be given to .a guardian before the court shall displace him, applies in terms to a case, where he is attempted to be divested of his trust for some good and sufficient cause: as malversation, neglect, áse. So the provisions, in respect to non-resident guardians are alike inapplicable. It is only necessary carefully to examine our legislation upon this.subject, to convince the judgment that these conclusions are an obvious result of our legislation! The choice of the minor of fourteen being allow-, ed, the previous appointee of the court is tacitly superseded, and may be required to settle his accounts.

No question is raised upon the other points made by the petition and specifications, and we have but to declare that the judgment of the orphans’ court is affirmed.