Garrett v. Garrett , 69 Ala. 429 ( 1881 )

SOMERVILLE, J.

It has been repeatedly decided by this •court that after the lapse of twenty yecsrs from the time when -an executor or administrator may be coerced to a final sttlement, the presumption of settlement and payment arises in his favor, rand operates as a positive bar to any proceeding citing him to a settlement, unless there has been a recognition or admission, within that period, of the administration, as a continuing, subsisting, and undischarged trust. — Greenlees, Adm'r v. Greenlees, 62 Ala. 330; Harrison v. Heflin, 54 Ala. 552, and authorities cited.

This rule of juesumptive evidence, based on the doctrine of prescription, has been well pronounced to be “rule of convenience and policy, the result of a necessary regard to the •peace and security of society.” — Foulk v. Brown, 2 Watts, 209. As suggested by this court, in McArthur v. Carrie's Adm'r, 32 Ala. 75, the reasons are forcible why it should be applied to all human transactions which are open to judicial investigation, and the rule by common consent of the courts has been fixed at a period of twenty years. It has been declared applicable to all kinds of debts and pecuniary obligations, including judgments, bonds and mortgages, embracing also fiduciary debts of •every character due from trustees to cesúuis que i/rust. The ueason of the rule applies, therefore, with as much force and propriety to guardians as to other trustees.

So sweeping is the principle in its scope and operation, that the presumption raised by it is not arrested or rebutted by the proof of any disability, such as infancy or coverture, on the part of the distributees by whom a trustee or administrator has been cited to settlement.- — -McCartney’s Adm’r v. Bone, 40 Ala. 533. Nor is the period oft the late war between the States, during which the statutes of limitations were suspended, to be deducted in its computation, as held by this court in Harrison v. Heflin, 54 Ala. 552. The decisions are'numerous in support of the foregoing propositions. — Goodwyn v. Baldwin, 59 Ala. 127; Rhodes v. Turner, 21 Ala. 210; Barnett v. Tarrance, 23 Ala. 463; Harvey v. Thorpe, 28 Ala. 250; Gantt’s Adm'r v. Phillips, 23 Ala. 275; McArthur v. Carrie's Adm’r, 32 Ala. 75.

As between guardian and ward, statutes of limitation do not ordinarily commence to run until there has been, a termination of the guardianship. This event may happen not only in the -event of the ward’s arriving at the age of twenty-one years; but also where either the death, resignation or removal of the guardian has intervened. Upon the happening of either of these contingencies the ward has the lawful right to coerce a settlement. — Code of 1876, §§ 2768-69, 2791, 2664 ; Alston v. Alston, 34 Ala. 16; Chapman v. Chapman, 32 Ala. 106.

It is a question of gravest difficulty as to the time when the period of twenty years shall commence to run. Shall it be only when the ward becomes of age, thus allowing a possible period of over forty years to transpire in many cases, before the settlement of the trust can be presumed, as would happen when the guardian qualifies when a minor is but six months old ? Or can it safely be allowed to commence from, the last item on the guardian’s account, the last partial settlement, or other like recognition of the existing trust? We confess that we can see objections to the establishment of either rule, but are inclined to adopt the latter as being less fraught with evil results, and as being more readily justified on principle. Section 2771 of the present Code provides that every guardian must make a settlement of his accounts every three years, and prior to the amendatory act of February 15th, 1873, a/rmual settlements were required of him. — Code of 1867, § 2421; Code of 1852, § 2022. So it is further provided by section 2791 of the Code of 1876, that “if the guardian does not come forward once in every three years and make settlement of his accounts, it is the duty of the fledge of probate to cause a citation to be served on him to appear and make settlement, and upon his refusal or neglect to make such settlement, it is the duty of the court to remove him from office, unless good cause be shown for the omission.” The same duty was exacted of judges of probate by the Codes of 1852 and 1867, excepting that he was required to cite the guardian to annual settlements. — Code of 1867, § 2440; Code of 1852, § 2030.

The judges of the probate court have thus been constituted quasi official trustees in this matter to represent the interests of minors. The presumption ib that every sworn officer of-the government will perform his official duties, and in proper cases it must be presumed that these officers will not neglect one so mandatory in its nature as that imposed by this statute. It would certainly be no unreasonable presumption to assume that they had not continuously neglected it for a period of twenty successive years. The probability is rather that the duty has been performed, and upon the refusal or neglect of the guardian to make settlement he has been removed, and the relationship of the guardian and ward has thus, or otherwise, terminated. When the presumption of payment and settlement, based on the lapse of twenty years, is thrown into the scales, the preponderance must be, we think* rather in favor of its prevailing over the countervailing and opposite presumption. There is room here for fit application of the maxim, Interest rei/publioae ut sit finis litium — it is to the interest of the State that there should be some limit to litigation.

We are inclined to adopt the rale, therefore, that if a period of twenty years be permitted to elapse from the last item on the guardian’s account, or the last partial settlement, or other clear recognition of the guardianship, as a subsisting and undischarged trust, the claim of the ward is stale, and he is barred of his right to coerce the guardian to a settlement. This point, however, is not absolutely necessary to be decided for the purposes of this case, and we leave it undetermined at present.

In this case the last partial settlement was made by the guardian on February 28th, 1862, and the citation of the guardian to settlement, made by the judge of probate, was issued within less than twenty years from the date of such partial settlement— being within a little over nineteen years from the last recognition of the trust. It was also within less than twenty years from the ward’s attaining his majority. Estimating then- from either period of time, the bar of twenty years is not complete.

Whether the amount found due by the guardian on final settlemant, if anything, is barred by the statute of limitations as against the surety on the guardian’s bond, is a question which can not be here considered, as it does not properly arise in the case. — Code, 1876, § 3226, subd. 7.

The petition filed by the ward to bring the guardian to settlement was improperly dismissed. The decree of the probate court must be reversed and the cause remanded.