Martinez v. Meyers , 167 Ala. 456 ( 1910 )

ANDERSON, J.

The bill in this case does not seek to vacate the decree of the probate court for fraud, but proceeds under section 3914 of the Code of 1907 to correct the same as to certain items of the account, because of mistake of law or fact in the settlement induced by the fraud of the guardian, one of the respondents. The bill charges the investment of some of complainant’s funds in certain street railway stock and bonds, and that the respondent Meyers held out the proceeds of the bonds, and only accounted for the stock, and so framed her account as to fraudulently mislead the court and the complainants into the belief that she was accounting for all they had as a result of the investment in the Meridian Street Railway Company; that complainants were ignorant until after the settlement as to the bonds being purchased with the stock, and which the respondent Meyers purposely and fraudulently concealed from them, and omitted from her account and inventory upon final settlement. As to this item, we think the bill contains equity.

It was not the purpose of this statute, however, to merely authorize the chancery court to revise the decree of the probate court by correcting errors committed when all parties were cognizant of the facts upon which they may have been predicated. — Waldron v. Waldron, 76 Ala. 285. It may be that after the marriage of the respondent Meyers, and the separation of the family, the complainants were, under section 4200 of the Code of 1907, entitled to their share of the exempt property; but the existence of said exemption was known to all parties and to the court at the time of the settlement. It was disclosed by the inventory marked “Exhibit G-,” and was known to the complainants and the court, when the settlement was had,, and they had every opportunity, with a full knowledge of the facts, to make her account for said exempt property, and whether they can get their share in a subsequent proceeding or not we do not decide; but it is clear that the failure to have her account for same was not such an error as the present statute was intended to correct. For like reasons the item of interest of $30 omitted from the mortgage of $750 would not justify reopening the settlement. The note, coupons, and mortgage were all before the court, and by the exercise of proper diligence the omission of this item of interest was easily ascertainable.

The hill does not attack the conveyance from Meyers to her sister, Jane Drysdale, as being a voluntary one, but upon the ground that it was fraudulent, and failing to aver that the grantee knew of and participated in the fraud made it defective, and subject to the demuríers interposed. — Pipin v. Tapia, 148 Ala. 353, 42 South. 545.

The decree sustaining the demurrers going to the whole hill was error, as well as the one testing the street railroad stock and bonds, and is reversed in this respect, and one is here rendered overruling same. The decree sustaining the demurrers as. to the other items of the account, and as to the conveyance to Drysdale, is affirmed. The cost of appeal will he equally divided between appellants and respondents.

Affirmed in part, reversed and rendered in part.

Dowdell, C. J., and McClellan and Sayre, JJ., concur.