Watt v. Allgood , 62 Miss. 38 ( 1884 )

Campbell, C. J.,

delivered the opinion of the court.

Section 2128 of the Code of 1880 entitles the guardian of a minor, idiot, or lunatic, who resides out of this State, and which guardian has been appointed in the State of the residence of the ward, to sue for or receive any personal property of his ward in this State, and being entitled to acquire possession of such property, it follows that he may remove it to the jurisdiction of the forum from which he derived his power to act. Therefore, on the facts stated in the petition of the appellant, who complied with our law as to the conditions required to authorize him to sue for the personal property of his ward in this State, the guardian in this State, the appellee, should have been required to answer, and if the petition is true, to make a final settlement of his guardianship, when the appellant may receive and remove the estate, consisting of money in the hands of the appellee. It is true that there may not be two guardians at the same time in the same jurisdiction, but the guardian in this State may -be made to yield to the properly constituted guardian of the non-resident ward who has been appointed in the State of the ward’s residence, and upon the facts admitted by the demurrer should be made to thus yield.

The appointment of a guardian in Alabama did not supersede the guardian here, and the courts of this State must exercise a sound discretion in determining whether the guardianship here shall cease. It is not allowable that the guardianship here shall be made to yield to the removal of the ward to another State under any and all circumstances in which such removal may occur and a guardian be appointed there, but on the facts stated in this petition it will be the proper exercise of a sound discretion to close the guardianship in this State so that the money of the lunatic may be' removed to Alabama, where her home is.

Decree reversed, demurrer overruled, and cause remanded for the defendant to answer in thirty days after the mandate herein shall be filed in the office of the clerh of the court below.