Echols v. Speake , 185 Ala. 149 ( 1913 )

de GBAFFENBIED, J.

In the case of Mason v. Buchanan, 62 Ala. 110, this court, through Brickell, C. J., speaking of the authority of a guardian over the choses in action of his ward, said: “As to these, he may exercise the power which an executor or an administrator may exercise over choses in action coming into his hands for administration. A want of diligence in the exercise of the power will render him liable, but third persons, dealing with him in good faith, are not the guarantors of his prudence; they answer only for their own fair dealing.” While much was said by this court in that case which was unnecessary to a determination of the question then before the court, we take it that the quoted excerpt from the opinion is but a statement of the common-law rule on the subject, and it is a familiar proposition that statutes are not to be held to abolish a well-established rule of the common law unless it plainly appears that it was the legislative purpose to abolish the common-law rule. — Cook v. Meyer, 78 Ala. 580.

In the case of Butler v. Gazzam, 81 Ala. 493, 1 South. 17, this court said: “Our past decisions sustain the rule that the executor or administrator has the full legal title to all choses in action due the estate of the decedent, and that he may, in the absence of fraud or collusion, release, compound, or discharge them as fully as if he were the absolute owner, being answerable only for any improvidence in the exercise of the power.” This quoted rule was approved by this court in Logan, Adm’r, v. Central Iron & Coal Co., 139 Ala. 548, 36 South. 729, and we take it that the quoted rule clearly indicates that an administrator certainly before the adoption of the Code of 1907, may sell, without an order of the court, at his peril and the peril of his bondsmen, the choses in action of the estate of his intestate. If, then, this court, in Mason v. Buchanan, supra, was correct in its statement of the law that a guardian may exercise the power which an executor or administrator might exercise, as above stated, over the choses in action of his intestate, then it would follow, as a necessary conclusion, that a guardian, without an order of court, may, at his peril and at the peril of his bondsmen, sell the choses in action of his ward. — Schmidt v. Shaver, 196 Ill. 108, 63 N. E. 655, 89 Am. St. Rep. 250.

In a note by Mr. Freeman to the above case of Schmidt v. Shaver, which note is to be found in 89 Am. St. Rep. 281, we find the following:

“(1) General Rule.- — Except in South Carolina, the right of a guardian, in the absence of a statute, to dispose of the personal property of his ward is well settled. As is said in Wallace v. Holmes, 9 Blatchf. 65, Fed. Cas. No. 17,100: ‘His duty to pay debts and to provide for the support, maintenance, and education of the ward, and generally to manage the estate, * * * all imply the power of the guardian in this respect. In this management, he is under a rigid responsibility, not only for the property, but for its management and disposal for the best interests of the ward.’ It is therefore the rule, supported by the great weight of authority, that a guardian may, without application to, or an order of court, sell the personal property of his ward.— Woodward v. Donnally, 27 Ala. 198; Lee v. Lee, 55 Ala. 590; Mason v. Buchanan, 62 Ala. 110; McConnell v. Hodson, 7 Ill. [2 Gilman] 640; Schmidt v. Shaver (principal case) 196 Ill. 108, 63 N. E. 655 [89 Am. St. Rep. 250]; Schmidt v. McBean, 98 Ill. App. 421; Humphrey v. Buisson, 19 Minn. 221; [Gil. 182]; Field v. Schiefflin, 7 Johns. Ch. [N. Y.] 150, 11 Am. Dec. 441; Thomas v. Bennett, 56 Barb. [N. Y.] 197; Tuttle v. Heavy, 59 Barb. [N. Y.] 334; Truss v. Old, 6 Rand. [Va.] 556, 18 Am. Dec. 748; Bank of Virginia v. Craig, 6 Leigh [Va.] 399; Maclay v. Equitable Life Ass’n Soc., 152 U. S. 499, 14 Sup. Ct. 678 [38 L. Ed. 528]; Mullen v. Wine [C. C.] 26 Fed. 206; Wallace v. Holmes, 9 Blatchf. 65, Fed. Cas. No. 17,100. A guardian may therefore dispose of his ward’s interest in a patent right (Wallace v. Holmes, 9 Blatchf. 65, Fed. Cas. No. 17,-100), a right to locate public land as a homestead (Mullen v. Wine [C. C.] 26 Fed. 206), or a judgment in favor of his ward (Schmidt v. Shaver [principal case] 196 Ill. 108, 63 N. E. 655 [89 Am. St. Rep. 250]).

“(2) Assignment of Choses in Action. — The most frequent exercise of this right is, however, in the sale and assignment of promissory notes or other choses in action, in the larger number of cases secured by mortgage. The right of the guardian to assign is in such case undoubted (McConnell v. Hodson, 7 Ill. [2 Gilman] 640; Humphrey v. Buisson, 19 Minn. 221 [Gil. 182]; Tuttle v. Heavy, 59 Barb. [N. Y.] 384; Field v. Schieffelin, 7 Johns. Ch. [N. Y.] 150, 11 Am. Dec. 441; Fletcher v. Fletcher, 29 Vt. 98), especially where the choses in action are made payable to the guardian (Gentry v. Owen, 14 Ark. 396, 60 Am. Dec. 549; Fountain v. Anderson, 33 Ga. 372; Jenkins v. Sherman, 77 Miss. 884, 28 South. 726; Gillespie v. Crawford [Tex. Civ. App.] 42 S. W. 621), or if shares of stock stand in his name (Atkinson v. Atlwnson, 8 Allen [Mass.] 15; Bank of Virginia v. Craig, 6 Leigh [Va.] 399).”

It will be noticed that in the above note the case of Mason v. Buchanan is cited by the learned annotator as sustaining the position assumed by him, and we think that, certainly in so far as the sale of choses in action is concerned, the case sustains the conclusions of the annotator.

It would seem, therefore, that in this state a guardian may sell the choses in action of his ward at his peril and at the peril of his bondsmen without an order of court. •

The decree of the chancellor is not in accordance with the above views, and the decree is therefore reversed, and a decree is here rendered granting to appellant the relief prayed for in his cross-bill.

Reversed and rendered.

Dowdell, C. J., and Anderson, Mayfield, Sayre, and Somerville, JJ., concur. McClellan, J., dissents.