Smith v. Smith's Adm'rs , 21 Ala. 761 ( 1852 )

GrOLDTH WAITE, J.

— The objection which is taken by tbe plaintiff in error, that tbe issue ascertaining tbe advancement was not made between tbe proper parties, cannot be sustained. It was competent for any of tbe other heirs of tbe intestate to raise tbe objection; and although it would be tbe better practice, whenever it is necessary to form an issue to ascertain whether an advancement has been made by tbe intestate, that tbe proceedings should be conducted in tbe name of tbe administrators as plaintiffs, and tbe party contesting tbe fact of tbe advancement as defendant, yet, if it appears from tbe record, that tbe question at issue was fairly presented, and correctly decided, without objection in tbe court below, tbe defendant, if tbe decision is against him, cannot complain that tbe other distributees were the plaintiffs, instead of the administrators. By not making the objection in tbe court below, be assented to tbe trial of tbe question in tbe shape in which it was presented; and after doing tbis, be will'not be permitted to raise tbe objection before an appellate tribunal.

We think also, that tbe court below decided correctly in relation to tbe advancement. Tbe evidence clearly shows, that the slave Lucy and her child were paid for with tbe money of tbe intestate, and that on two different occasions be asserted bis title to them, in tbe presence of tbe child to whom it was alleged tbej were advanced, wbo not only failed to deny bis claim, but on the last occasion, by bis language, admitted it. After this, we find them remaining in the possession of the child up to bis death, a period of some four years, during which time they were used and controlled by him as his own property. The testimony also shows, that he disposed of them by will, made in the presence and with the knowledge of the testator, who, while he asserted his right to the other slaves disposed of by the same instrument, set up no claim to these. Under these circumstances, we can arrive at no other conclusion, than that the father had, before the death of his son, divested himself of the ownership of the slaves referred to, in favor of his son. The rule laid down by Mr. Justice Ormond in the case of Mitchell v. Mitchell, 8 Ala. 414, is, that if a child receives money or property from a parent, it will be ■prima facie an advancement under our statute, unless the presumption is repelled by the nature of the property, or by some other-circumstances showing that it could not have been intended for that purpose. In the present case, the son is engaged in business for himself; is living apart from his father, in a situation requiring an advancement; and the nature of the property is such as a parent, having that object in view, would be likely to bestow. Instead of repelling the presumption, the testimony tends rather to fortify and strengthen it.

In relation to the question of notice: The record recites, that, on the day and at the term appointed for the final settlement of the estate, the administrators appeared, and presented their accounts, which are shown to have been previously duly reported and filed, for settlement; and also, that the guardian of the minor heirs appeared, and claimed for them a distributive share. These recitals are conclusive, as to the fact of the appearance of the minor heirs by their guardian ; and as this legal appearance would dispense with the necessity of notice, the real question is, whether the minors who are interested in the distribution of an estate can properly be represented on its final settlement by their general guardian. We are not aware that this question is covered by any previous decision, and in the case of King v. Collins, 21 Ala., it is considered as one still open for adjudication. It is unnecessary to cite authorities to sustain the position, that, in general, the appearance of an infant by sucb a guardian is good; and we think also, that, generally speaking, he feels a higher degree of responsibility in protecting the rights and interests of the ward, than the guardian ad litem appointed by the court, who seems usually to consider his duties as limited to a denial'of all matters which may affect the rights of the ward, without resorting to any positive or active measures to secure them. It is true, wheiu the general guardian is an incompetent or unfit person to represent the infant, it would unquestionably be the duty of the court to appoint a suitable person guardian ad litem ; but in those cases in which the general guardian does appear, and is recognized by the court as the representative of the minor, we can perceive no good reason why the appearance should not be sustained.

It results from these views, that there is no error in the record, and the decree is affirmed.