Hutton v. Williams , 60 Ala. 133 ( 1877 )

BRICKELL, C. J.

The question first arising in this ease is the effect of the final settlement of the appellee, Williams, as guardian of the appellant, made in the Court of Probate, on the 6th day of February, 1866. If that settlement is valid and operative against the complainant — if the court had jurisdiction of his person, as it certainly had of the subject-matter — the decree rendered thereon is conclusive, until impeached for fraud, or for errors occurring without his fault or neglect. But, if it is not valid against him, as a judicial proceeding — if the court, though having jurisdiction of the subject-matter, was without jurisdiction of his person; and he has not had the opportunity, which the law affords him, to be heard to defend against it — without assailing it for fraud, or for errors which may have intervened, he has the right to demand from the guardian a settlement of his accounts, as if that proceeding had not been commenced and ripened into what purports to be a final decree.

■An indispensable element of the conclusiveness of a final settlement of a guardian, made during the infancy of the ward, is the representation of the ward by a guardian ad cl. The office having expired, and there being a regular guardian appearing and representing the ward, dispenses with the necessity of appointing a guardian ad litem, the record disclosing the appearance and representation. A settlement without the appointment of such guardian, and without affording him the opportunity of appearing and contesting the accounts of the guardian, on behalf of the ward, is ex parte, and, at the election of the ward, may be disregarded. It is not evidence against him, and is not a bar to any proceeding he may subsequently commence for a settlement of the guardianship. — Frierson v. Travis, 39 Ala. 150; Wilson v. Wilson, 18 Ala. 176; McCreeliss v. Hinkle, 17 Ala. 459; King v. Collins, 21 Ala, 363 ; Cunningham v. Pool, 9 Ala. 615. The statute imposes it as a duty on the Court of Probate, to appoint such guardian (Code of 1876, §§ 2510, 2793); and when the court proceeds without the appointment, and without a legal representation of the infant, as to him, if he elects so to treat it, the settlement is coram non judice. The settlement is not, properly speaking, void; it is voidable, at the election of the infant, seasonably expressed. The guardian, the actor in the proceedings, of whom the court has jurisdiction, and who was bound to conduct them regularly, can not, even on error, avoid it. — Kavanaugh v. Thompson, 16 Ala. 817; Treadwell v. Burden, 8 Ala. 660; Davis v. Davis, 6 Ala. 611; Williamson v. Hill, 6 Porter, 184. The right to treat the settlement as invalid, belongs alone to the infant, and may be lost by him, if he is not diligent in exercising it. court, if the office of the

The bill avers, and the averment is supported by the record of the Court of Probate, which is exhibited, that on the final settlement of the accounts of the guardian, and on the preceding annual settlements, the appellant, then in infancy, was not represented by a guardian ad litem. There was in fact, so far as is shown, no representation for him. The answer avers the presence of the appellant, and of an adult brother, at the final settlement, and an examination by them of the accounts and vouchers, and an acquiescence in their correctness. These facts may be true, but they cannot render the settlement valid. The brother was without authority to bind the appellant, and, without the appointment of the court, could not have intervened to contest the accounts and vouchers on his behalf. The appellant, an infant, could not, by mere acquiescence, or by direct acknowledgment, in the absence of intentional fraud, affect or impair the right to treat the settlement as void. Nor can the defect in the jurisdiction of the court, which appears of record, be cured or supplied by facts resting in parol.

The settlements not being entitled to the dignity of judicial proceedings — not res adjuclicata, and not evidence against the appellant — it is not material what are the imperfections of the bill, if its equity depended on the averment of fraud to re-open them, or of errors to surcharge and falsify the accounts. It is, properly, a bill to compel the guardian to an account and settlement, and should have been so regarded by the chancellor. — Frierson v. Travis, supra.

3. When a guardian, or other trustee, claims a credit for moneys expended, the onus of proving the correctness of the credit, devolves on him. — Pearson v. Darrington, 32 Ala. 227; Gantt v. Tucker, 18 Ala. 27; Savage v. Benham, 11 Ala. 49. The statute substantially declares the rule in refer encesto settlements in the Court of Probate by executors or administrators (Code of 1876, § 2516); and declares that settlements of guardians must be governed by the law applicable to the settlements of executors or administrators. — Ib. § 2793. Regarding the bill as dependent for its equity on the averment of fraud to re-open the settlements, or of errors to correct the accounts, the chancellor seems to have treated the settlements and accounts as evidence against the appellant, proving themselves, except so far as he had impeached their correctness by averment and proof. The burden of proof was thus shifted from the guardian to the appellant, and an error committed fatal to the decree. These accounts and settlements were not evidence against the appellant, for any purpose. A reference should have been directed to the register, to take and state an account of the guardianship.

4. In executing the reference, the register should have been directed to observe, as far as practicable, the mode of proceeding on settlements in the Court of Probate. The practice has been, and it is convenient, for the Court of Chancery, when it takes jurisdiction of the settlement of an administration originating in the Court of Probate, to apply the statutes regulating the mode of proceeding in the Court of Probate, as far as is practicable, and is consistent with its own rules of practice. The right of the complainant to an account being clear — the relation of the guardian and ward not being disputed — and no question arising which ought to have been settled by the chancellor, before a reference — the whole case resolving itself into matters of account — an order of reference to the register should have been made., The guardian should have been ordered to file, within a specified time, his accounts and vouchers, for a settlement. Notice should have been directed to the complainant, of the filing of the accounts and vouchers; and he should have been ordered, within a limited time, to file objections to them. The register should have been ordered then to proceed, and audit and state the accounts and vouchers, and report the result to the chancellor ; the parties being allowed the right of exception to the report of the register, and having notice of the time and place of auditing and stating the accounts, with the right of introducing evidence.

5. In the present state of the record, we do not deem itproper to consider many of the matters of account which may arise on the reference to the register. The guardian seems to claim credit for large expenditures made during the war, in boarding, clothing, and tuition, for the ward. These expenditures were made in Confederate treasury-notes; and the extent to which creditsfshall be allowed is a matter of controversy between the parties, and we feel bound not to defer its decision. The indication in the present record is, that the guardian did not loan, or otherwise invest the moneys of the ward — that he retained and used them for his own benefit; that he became the principal hirer annually of the ward’s slaves, and was the largest, if not the only debtor to the ward. The guardian can not be allowed, in extinguishment of his own debt, to claim credits for these expenditures, at their nominal amount. The value of the board, or clothing, or tuition, not in the uncertain, fluctuating currency of the war, but in the currency of times of peace, is the extent of the credit to which he is entitled. Nor had the guardian authority to fund in Confederate securities the debt due from himself to the ward.

6. The guardian seems to have obtained credit on the settlements in the Court of Probate, for medical services rendered by himself, as a physician, to slaves of the ward he had hired. The law was, in the absence of an agreement to the contrary, the hirer was bound to furnish, at his own expense, the necessary medical attendance to hired slaves.—Gibson v. Andrews, 4 Ala. 66. The guardian could not with himself agree to vary this principle of law, and credit for such services should not be allowed him. —Owen v. Peebles, 42 Ala. 338.

Without considering any other question, for the errors we have pointed out, the decree must be reversed, and the cause remanded, for further proceedings in conformity to this opinion.