King v. Collins , 21 Ala. 363 ( 1852 )

DARGAN, C. J.

— Tbe first question presented to us by tbe assignment of errors is this: Was tbe notice given to the rlist.ribntp.es sufficient to authorize the decree that was rendered? Tbe notice itself is not before us, and wc can only form an idea of its character from the order directing it to be given. This order is in tbe following language: “It is ordered by tbe court, that the said fourth Monday in September be set for tbe settlement of said estate, so far as the samo has been administered, and that tbe account as stated be then allowed as upon a partial settlement.” In the absence of the notice itselfj wc can only presume that it corresponded with tbe order directing it to be made, and, therefore, that it was a notice of a partial settlement, and not a final one. But tbe decree that was rendered is final in its character, and is conclusive as to the rights of tbe parties as they are ascertained by it. Hence tbe question is narrowed down to this: Will notice of a partial settlement justify the court in proceeding to a final settlement? Anterior to tbe act of tbe 11th of Fob., 1850, it was doubtful whether there was any difference in legal effect between annual settlements and final settlements; at least the act of 1848 left the question in a confused condition. But tbe act of 1850 declared tbe effect of annual or partial settlements, making them only ;prima facie evidence of their correctness, and subjecting them to be impeached for any error in law or fact, upon the final settlement. Sec Pamphlet Acts 82, 88. The consequence of this act is, that final and partial settlements differ widely in their legal effect; the former being conclusive, and tbe latter only prima facie evidence of their correctness. A notice, therefore, of an intended annual or partial settlement, will not authorize the rendition of a final decree; and tbe court erred in proceeding to render a final decree in tbe absence of some of tbe distributees, tbe notice to them being only of a partial settlement.

We are also of tbe opinion, that tbe court should bave appointed a guardian ad litem for the infant, notwithstanding she may bave bad a guardian of her person and property regularly appointed, but who failed to attend the settlement. We bave on several occasions held, that it was error to proceed to a final settlement, where there were infant distribu-tees, without appointing guardians ad litem to protect their interest. See Clack’s Distributees v. Clack’s Administrators, decided at tbe last term, and cases there cited. But tbe precise question here presented wo do not remember to have decided.

We know it is the duty of all courts, to see that the interest of an infant, who is a party to a suit before it, is properly protected, and this can only be done, by appointing some one to supervise and protect his rights, when there is no one else that can or will do it. As this is the duty of the court, -we do not see how this duty can be said to be performed or dispensed with, merely by showing that the infant had a guardian, but who failed to attend and supervise his rights. We apprehend, that if the cause was pending in a court of chancery, the Chancellor would not fail to appoint a guardian ad litem, because he was advised that the infant had a guardian regularly appointed; and even if he did, his decree would be liable to be reversed for this reason. And wc know of no other rules of practice to apply to the Court of Probate, that will better secure the rights of infants, than those which obtain in the Court of Chancery; and wc therefore think, that the court should have appointed a guardian ad litem for the infant defendant, inasmuch as her regular guardian failed to attend the settlement.

We are, however, referred to tlic case of Parks v. Stonum, 8 Ala. 755, in which it was decided, that it was not an error to render a final decree, even when there were infant defendants, provided they did not appear before the final decree was rendered, for the purpose of contesting the account; but this decision is opposed to several subsequent ones, and in this particular cannot be sustained. The statute, it is true, requires that tbe Orphans’ or Probate Court should apjioint guardians ad litem for minors, if necessary; but we consider it necessary to be done in all cases, if the regular guardian fails to attend for the purpose of supervising the interest of the defendants.

We have intimated, that the rules of practice which obtain in the Court of Chancery should be applied to the practice of the Probate Court, in cases where they can be made to apply; but that must be understood to be confined to those cases where no rule of practice to be drawn from our statutes, or from the Ecclesiastical Courts of England, can be made to apply, which is the case in this instance.

We also think, that the court acted improperly, in ordering Hampton, the executor, to be discharged from liability to the estate. We know that an administrator de bonis non is authorized under our law to call on the executor or administrator in chief, who has resigned or been removed from office, to account to him for all assets that have come to the hands of such executor or administrator; and the consequence of this right is, that the administrator de bonis non may settle with him out of court, and give a full receipt or discharge from all liability, which could not be impeached unless for fraud or mistake. But we do not think that this right of the administrator de bonis non authorized the Probate Court to make tbe order in this particular instance. The validity of the receipt was a matter outside of the settlement; at least its validity was not propounded by James Hampton; nor does it appear that he moved for a disci large. But we infer from the record, that the court ordered his discharge merely because the administrator in his report showed that lie had made a settlement with him. This was erroneous. It may be, that an executor or administrator in chief, who has settled with the administrator de bonis nan, may apply to tbe Orphans’ Court for a discharge from liability to the estate. That question, however, we do not decide; but conceding that he may, be should give notice of his intended application, produce bis receipt showing tbe settlement, and move for a discharge.

But the mere fact, that the administrator de bonis non, upon a final settlement, represents that he has settled in full with the executor or administrator in chief, will not authorize the court, ex mero motn, to discharge such executor or administrator from liability.

These are the only assignments of error we deem it necessary to examine; if there be any others that would work a reversal of the decree, they can be corrected in the court below upon another trial.

Let the decree be reversed, and the cause remanded.