Carlisle v. Tuttle , 30 Ala. 613 ( 1857 )

WALKER, J.

The permission to file the amended petition was not erroneous. The amendment did not make a new case. It merely supplied the defects in the case previously made, as to allegations and parties ; which may be done in the probate, as well as in the chancery court. Martin v. Martin, 22 Ala. 86.

The object of the petition was the removal of the infant’s property to another State. The amended petition disclosed in what the property consisted, and that the administrator was interested in the proceeding, because he still had in his hands undistributed assets, which would be within the operation of the order sought by the petition. The making the administrator a party, upon this amendment, is sustained by its perfect analogy to the case of frequent occurrence and undisputed legality, where in the chancery court an amendment points out an interest in the subject-matter of the original bill in some new party, and makes him a defendant.

The' administrator was interested in the proceeding, for the reason above stated. The guardian was interested, whether he had in his hands the money recovered in the decree against the administrator or not, because the success of the application would transfer to another his right to receive the property of the infant. The administrator and guardian, being both interested in the proceeding, were proper parties, and were properly joined as defendants. The Code (§ 2038) must not be understood, in prescribing notice to the “administrator or guardian,” to prohibit the bringing of them both before the court, where they are both interested. The statute (Code, § 2033) makes the order, in which the successful prosecution of the application must terminate, an authority to the guardian to sue for and recover the property of the ward in his own name, for the use of the ward. The order has thus the effect of transferring to the non-resident guardian the right which before pertained to the resident guardian. To a proceeding, ending in such an order, the guafdian was properly made a party, whether he had any of the property in his possession or not.

The following positions, in addition to those already incidentally passed upon, are taken in support of the demurrer to the petition : 1st, that the proceeding should have been in the name of the ward, by the guardian; 2d, that tbe petition does not disclose with sufficient certainty that Mrs. Tuttle was the natural mother of the infant, and had a right to change the infant’s domicile from this to another State ; 3d, that Mrs. Tuttle’s guardianship was terminated by her subsequent marriage; 4th, that the husband of Mrs. Tuttle was improperly joined -with her-as a petitioning party; 5th, that the juris7 diction of the Perry probate court over the matter of the guardianship could not be divested.

The first of those positions is met by the statute itself. Section 2032 of the Code authorizes, in certain prescribed contingencies, an order for the removal of the ward’s property to the State of his residence, “upon the application of the guardian.” The application here is by the guardian, and is therefore, in that respect, strictly conformable to the statute.

The original petition distinctly and repeatedly characterizes the ward as the son of Mrs. Tuttle, and the amended petition calls him her “infant child.” It is thus shown with sufficient certainty that she is the natural mother of the infant. The language used is appropriate to the designation of her as the natural mother, and not the stepmother, This court does not decide, in Martin v. Martin, 22 Ala. 86, that the averment that the petitioner for dower is the toidoio of the deceased does not amount to a sufficient assertion of her marriage ; but simply remarks, arguendo, that it “is a mode of pleading not to be encouraged.” This will be seen by looking beyond the head-note, to the opinion itself.

Mrs. Tuttle, being the natural mother of the ward, had a right, after the death of the father, and during her widowhood, to change his domicile; he being at the time under the age of seven years, and there not appearing any fraudulent design to alter the succession upon the infant’s death, and there being no guardianship in this State.— Potinger v. Wightman, 3 Merivale, 67; 1 Jarman on Wills, 10; Reeve’s Domestic Delations, 298; Cumner Parish v. Milton Parish, 3 Salk. 259.

Mrs. Tuttle having been appointed guardian in Connecticut, when she was unmarried, her subsequent marriage would not terminate her guardianship. Such marriage may have had the effect to authorize proceedings for her removal, and the appointment of a new guardian; but it would not, ipso facto, terminate the guardianship. If it be conceded that the husband’s assent to the continuance of the guardianship was indispensable, such assent must be presumed in the absence of all evidence to the contrary. — White & Tudor’s Lead. Cas. in Equity, 2 vol., 2d part, 146; 4 Com. Dig. 610, Guardian, E, 2; 1 Bright on H. & W. 17; Palmer v. Oakley, 2 Doug. 471; Adair v. Shaw, 1 Sch. & Lef. 243; Macpherson on Infants, 89, 111; Jones v. Powell, 9 Beavan, 345; In re Gornall, 1 Beavan, 347; 4 Bacon’s Abr. 554.

Upon the marriage of a feme guardian, her husband becomes guardian with her during the coverture. The effect of the marriage of an administratrix is to make the husband co-administrator with her. — Pistole v. Street, 5 Porter, 64 ; Kavanaugh v. Thompson, 16 Ala. 817; Williamson v. Hill, 6 Porter, 184. The same reasons exist for assigning to the husband, upon marriage, the attitude of an associate with his wife in her pre-existing guardianship, as in her pre-existing administration; and they should be allowed the same effect in both cases.

There is an authority, which holds, that the guardianship of & feme sole is not, upon her marriage, transferred to her husband. — 2 Com. Digest, marg. page 384. This is not inconsistent with the proposition, that the husband is joined with the wife in the guardianship during the coverture. Such joinder of the husband with the wife in the guardianship does not involve the idea of a transfer of the guardianship from the latter to .the former. In Osborne v. Carden, 1 Plowden, 292, it is said: “When the wife, being guardian, took husband, the husband had an interest in the wardship, in right of the wife; for the husband partakes with the wife in all her prerogatives; and therefore, when the wife had the wardship of the infant, and the husband had the wardship and direction of the wife, therein he had the wardship of all those things of which the wife had the wardship before ; for the law does not deprive the husband of any interest, prerogative* or tiling which the wife had, bat vests the interest in him with his wife, because they are but one in law.” In Bacon’s Abridgment, (Guardian, F,) we find the law thus stated : “If a feme guardian in socage marries, the husband becomes guardian in right of his wife; but if she dies, the guardianship ceases as to him, and shall go to the next of kin to the infant.”

In all proceedings by the wife, who was guardian before coverture, the husband must be joined. — McGinty v. Mabry, 28 Ala. 672; 2 Bacon’s Abr. 56, Baron § Feme, K.; Byrne v. Van Hoesen, 6 Johns. 66.

Upon the marriage of Mrs. Carlisle with Tuttle, her husband became guardian with her; and this proceeding was, therefore, properly instituted by the two, and the decree was properly rendered in favor of the two, if the proceeding can be maintained as to other matters.

It is true that the statute requires the foreign guardian to produce a transcript, showing that ho has been appointed guardian; and the husband has not been, by name, appointed as guardian. But the appointment of a feme sole as guardian has the effect of making her subsequent husband joint guardian with her ; and the appointment of a feme sole is, in effect, the appointment of her subsequent husband to the office with his wife pending the coverture. Thus the petitioning parties here are not without the letter, as they certainly are within the spirit and meaning of the statute.

In the case of Cook v. Wimberly, 24 Ala. 486, this court sustained the probate court, in its refusal to order the removal of a ward’s property to another State, when the guardianship had commenced in this State while the infant was a resident, and before such infant was carried into another State. The decision is placed upon the ground, that a pending guardianship could not be ousted by the removal of the ward, without the consent of the guardian, to another State. That decision has no application to this case. Before any guardianship commenced in this State, the mother of the infant carried him to another State; and both the mother and child there acquired a domicile, and the former was appointed guardian. A residence, acquired under such, circumstances, constitutes the guardian and ward non-residents of this State, within the intent and meaning of the statute.

A motion was made for the appellants to suppress a deposition, upon the ground ' that the ten days notice, required by the judge of probate who issued the commission, and given by the appellees, was insufficient. It was shown to the court, in support of the motion, that the distance from the place where the cause was pending, to the place appointed for taking the deposition, was 1500 miles, and that the distance could be traveled in six days. Conceding that the decision of the officer who prescribes the period of notice is revisable, we cannot regard the notice as insufficient. It was four days longer than the time necessary to be consumed in the travel; and it must be permitted, in fixing the notice under the statute, to look at the accustomed mode of traveling, and the time which it would take, as well as to the condition off the party to be notified, and any other circumstances materially affecting the question.

I pass by, without noticing it, the separate objection to the deposition of Mrs. Caroline Norton, because she proves no material fact not proved by another witness, whose credibility is not assailed ; and the whole evidence being set out in the bill of exceptions, we would not reverse for an error in the admission of the testimony, if there is enough without it to justify the decree of the court; and in this case, if the evidence authorized the decree with the deposition, it would without it. The separate parcels of the deposition objected to were not all necessary to the decree, and the decree may be sustained without their aid.

The record of the probate court for Litchfield District, Connecticut, shows that both the ward and the guardian were of that district. This, upon a reasonable interpretation, we think equivalent to saying that they resided in the district; and being residents of the district, it was within the jurisdiction of the court to appoint the guardian.

The transcript from the record of the probate court for Litchfield, Connecticut, says, that the guardian’s bond was accepted, and ordered to be filed. The clerk, in his certificate, certifies, that so much of the transcript as purports to be the order of the court is a true copy from the record, and that the transcripts of the bonds are correct copies of the bonds on file in the office. The bonds are not, prima fade, matters of record; and, in the absence of a statute showing that they are matters of record, cannot be certified under the act of Congress of 1790. If they can be given in evidence under a certificate at all, it must be under the act of Congress of 27th March, 1804. Martin v. Martin, 22 Ala. 102; Mitchell v. Mitchell, 3 Stewart & P. 81; White v. Strother, 11 Ala. 723. The certificates are not conformable to the act of 1804; and therefore the bonds were not admissible in evidence upon those certificates.

But the exclusion of the bonds as evidence would have had no effect upon the decision of the case. The decréfe must necessarily have been the same, if they had not been before the court. The statute (Code, § 2033) requires, that the guardian should produce to the court a transcript, showing, among other things, that the guardian had “given bond, with security, for the performance of' his trust.” It is the fact that a bond, with security, was given, and not the bond itself, which the statute requires should be shown. This requisition of the statute is filled by the transcript. It recites, that the guardian “appeared in court, accepted said trust, and gave bond, with security, with condition that the said guardian shall faithfully perform the duties of said trust; which said bond was accepted by this court, and ordered to be kept on file.” — Cunningham v. Slaughter, 24 Ala. 260.

The argument, that a non-resident guardian might obtain, an order for the removal of the ward’s property upon an insufficient bond, unless the bond is required to be shown to the court, and to be for an adequate amount, might be well addressed to the legislature, as a reason for an amendment of the law; but cannot justify a judicial tribunal, in departing from the plain letter and import of the statute as it stands. The requisition of the law is filled, when the record shows “that bond, with security, for the performance of the trust,” has been given and accepted by the court in which the guardianship is pending ; and a court has no right to add to the conditions which the legislature has prescribed.

There was no decree for costs. The petitioners should pay the costs of the application, and the decree of the probate court should have been rendered against them for the costs. But the error of the court below, in this respect, may be amended in this court.

In my opinion, the decree of the probate court ought to be reversed, and a decree here rendered, corresponding in all respects with the decree of the court below, except that the petitioners should be adjudged to pay the costs.

My brethren place the reversal of this case, upon the ground, first taken in the case of Lary v. Craig, that it does not appear that “the ward is entitled to property in this State,” as they think it is contemplated in section 2032 it should appear. As to this point, I deem it xny duty to dissent from their opinion, and to state the grounds of my dissent. My brethren think, that the right of an infant to a distributive share of an estate, upon which administration is pending, is not the sort of title to property, which the law requires should exist when the order for removal is made. That a distributive share in an administered estate is property, and the right to it a title to property, cannot be denied. Such an interest may be subjected to the payment of debts, and is susceptible of an assignment which will be upheld in equity. The fact that it is a chose in action is no objection, because the statute (§ 2033) expressly provides, that the order shall be an authority to the guardian to sue for and recover the property in his own name, for the use of the ward. If it be held, that there must be a final settlement of the' administration, and a final decree against the administrator, in favor of the ward, before the contingency has happened in which an order for the removal of the property can be made, the authority given “to sue for and recover” the property is useless; because the suit must terminate, and there must remain nothing uto be done, save tlie issue of execution, before the order could be made. The object of the statute was, to throw around the rights of the infant the protection of a guardian appointed at his residence, in the litigation necessary to recover his property. That object is totally defeated, if it be required that the litigation shall be had, and shall end in a final decree, before the guardian is invested with the authority to sue.

From the language of the statute (“where the ward is entitled to property in this State,”) I draw a different conclusion from that'which has been expressed by my brethren in the ease of Lary v. Craig. I understand that the ward may “be entitled to property” which is adversely held, and his right to which is reduced to a mere chose in action. One who has a right to a distributive share of an estate, upon which there is a pending administration, is entitled to property. His right is neither contingent, nor prospective : it is subsisting. The ascertainment of the value or amount of the interest may have to await the settlement of the administration; but the right to the distributive share, which is the chose in action constituting the property, is in actual existence.

Section 2034 says, that the order for the removal of the property is a discharge of the executor, administrator, or other person in whoso possession such property may be.” This section should not, in my opinion, receive such a construction as would make the order a discharge of the administrator or executor from the duties of his office. Suppose an executor should be charged with the execution of trusts to continue for twenty years, and yet the immediate payment of a specific legacy to a non-resident infant should be directed by the will, there being no debts against the estate; could it be reasonably contended, that the probate court would have to withhold an order for the removal of the ward’s legacy, which the executor might be willing and ready to pay, during the entire continuance of the trust, in order to avoid the discharge of an executor from his office. I cannot adopt that construction of the statute, which, I think, would lead to such a result. The statute means, in my opinion, nothing more than that the order shall discharge the administrator, executor, or other person in whose possession the property-may be, from liability to any other person, if he pays over or delivers to the non-resident guardian. The order is made a discharge, not merely to an executor or administrator, but also to any other person in whose possession the property may be. The word discharge is certainly not susceptible of any other meaning, than that which I have attributed to it, when used in reference to persons other than executors or. administrators. It can only mean, in reference to persons holding no fiduciary relation, .that they are discharged from liability to others, and authorized to pay or deliver to the non-resident guardian. The word must have the same signification in reference to executors and administrators. It would be a perversion of the statute to vary its signification with the. change of persons upon whom it is to operate.

In this case, there had actually been, before the filing of the petition, a partial settlement, and a decree in favor of the ward, for a specific .sum of money, against the administrator. My- brethren think, that the non-resident guardian should not be permitted to take the sum so decreed to his ward, until there was a final settlement. If the decree had been in favor of an adult, he might have at once sued out an execution, and collected the money from the administrator. The right of the.ward is certainly not less because of his infancy. The ward not only has property in this State, but his right is established by a solemn decree of a court of record. It seems to me that, to • deny the application of the . statute to such a ease, is tantamount to an abrogation of it.

My opinion as to the necessity of showing the bond given by the non-resident guardian, and as to the existence of a title to property which authorizes the proceeding, differs from that of the majority of the court in Lary v. Craig; and, therefore, is not' the opinion of the court. According to the opinion of .the majority of the court, the decree of the court below is reversed, and the cause remanded.

STONE, J.

The majority of this court re-affirm tbe principles settled in tbe case of Lary v. Craig, at tbe present term ; and to tbat extent, we differ from tbe opinion pronounced by Judge Walter. In other respects, we concur witb him.

Tbe judgment is reversed, and tbe cause remanded.