Wilson v. Knight , 18 Ala. 129 ( 1850 )

CHILTON, J.

Wilson having been duly appointed guardian for James W. Cawthon, and having acted as such for several years, his said ward arrived at the age of fourteen, and petitioned the Orphans’ Court to appoint him a guardian of his own selection. Thereupon, after due notice to Wilson, Knight was selected by the ward, and the letters to Wilson being revoked, was appointed guardian. The court having duly notified Wilson to co ne forward and file his accounts and vouchers for final settlement of his guardianship, and he failing to attend, proceeded as required by the statute, to state the account ex parte. In stating the account it appears the counsel for Wilson objected to certain charges against the guardian for negro hire and interest thereon, which seem to constitute the main bulk of the ward’s estate, upon the ground that the negroes so hired were trust property, deeded in trust by the ward’s mother to Wilson as trustee, and for the hire of which it was insisted he should account as trustee, and not as guardian. It appears that Wilson has regarded the hire of said slaves in his hands as guardian, and that he has so returned the same to said court annually, for the last fifteen years, and the Orphans’ Court has acted upon such returns, and allowed to the guardian credits greatly exceeding the interest on the other portion of the ward’s estate exclusive of what is designated as trust property. The trust deed does not appear of record, nor was any specific motion made, as predicated upon its provisions, for the guardian to correct his annual returns. It was considered by the court that the guardian having uniformly treated the hire of the slaves as in his hands as guardian, the same having been for so long a period returned in his annual accounts, he had thereby separated it from the trust, and made it effects in his hands subject to the jurisdiction of the Orphans’ Court. In this opinion we entirely concur. Wilson, who holds the deed, must be presumed to be cognizant of, and fully to understand its provisions. Non constat, the deed requires the annual hire to be paid over to the guardian, and the two characters uniting in the same individual, his returns to the Orphans’ Court, charging himself, should operate as though he had received it from a third party. The bill of exceptions fails to present the point which it was designed we should revise. It is manifest we can give no opinion as to the effect of the trust deed, unless it was brought to our notice. Ordinarily trustees must account upon annual settlements with the Court of Chancery, “ as to the management and situation of the estate.” — Clay’s Dig. 582 § C. But it cannot be assumed as a legal conclusion that there can be no trusts created by deed, where the proceeds could properly go into the guardian’s hands as such, and be administered in the Orphans’ Court. The deed, as we before said, might specially provide for such disposition of the proceeds, and as the contrary does not appear of record, we would, if it were necessaiy to support the decree, intend that such were the provisions of this deed. But in this case, we are not left to intendment. The most solemn, sworn recognition of the guardian’s right to the proceeds of the hire of said slaves as guardian, is afforded by his returns, and by them, he is foreclosed, unless he could show some error or mistake, which he fails to show in the record before us. This view is in unison with Hudson v. Parker, 9 Ala. 413, and Cunningham v. Pool, ib. 615.

As to the insufficiency of the citation to the guardian, it is snfficient to say, that he appeared by his counsel on the first hearing, and in proper person on the final trial. This dispenses with notice, no objection being taken to it in the court below. We have no doubt as to the entire correctness of the decree, which must consequently be affirmed.