18 Ala. 176 (Ala. 1850), Wilson's Heirs v. Wilson's Adm'r

Citation:18 Ala. 176
Opinion Judge:CHILTON, J.
Attorney:LESLIE, for the plaintiffs in error: TORREY, for the defendants:
Court:Supreme Court of Alabama

Page 176

18 Ala. 176 (Ala. 1850)




Supreme Court of Alabama

June Term, 1850

         ERROR to the Orphans' Court of Monroe.

         LESLIE, for the plaintiffs in error:

         1. An advancement must be made to the heir of the intestate; therefore the record should show conclusively, that the advancement was made to the children (and each of them,) of Sarah Hammond. The record states that the advancement was made to Asa Hammond in his lifetime. Asa Hammond had no authority to receive an advancement to his children. He was not their guardian, and it will not be presumed that he had any authority to receive money for his children.

         2. It is the duty of the court to appoint guardians ad litem, for infants, in order to protect their rights.--Jenkins' Distributees v. Jenkin's Adm'r, 16 Ala. 693; Kavanaugh & Wife v. Thompson, 16 Ala. 827. These cases show that it is not necessary that the infant should come into court and contest the account before the court should appoint a guardian, as laid down in Parks v. Stonum, 8 Ala. 752. An infant has not capacity to come in and contest the account. If the infant could come and contest the account, there would not be any reason or necessity to appoint a guardian, and the Legislature intended to protect the rights of those who did not have capacity to protect their own interests.

         3. The record should show affirmatively that notice had been given. The statement that the notice previously ordered had been given is of no greater effect than that legal notice had been given.--9 Ala. 430.

         TORREY, for the defendants:

         1. There is no bill of exceptions in this case, and this court is not informed of the evidence upon which the decree below was founded. The decree recites that the court below was satisfied that "the children of Sarah Hammond received advancements made to the said Asa Hammond in his life-time." In the absence of a bill of exceptions, this court, in support of the judgment below, will presume that the evidence to this effect was sufficient; that the money was so paid, was an advancement, and that Asa Hammond was authorised (as guardian or otherwise) to receive it. Whether the court erred or not, is a question which wholly depends upon the evidence, and in the absence of this, every intendment will be made in favor of the regularity of the proceedings of courts of competent jurisdiction.

         2. It is urged that the court below erred in not having appointed guardians ad litem for the infant children of Sarah Hammond. In reply to this--the duty of the court to appoint guardians ad litem, is laid down in Taylor & Wife v. Reese, 4 Ala. 121, as well as in Jenkin's Distributees v. Jenkin's Adm'r, 16 Ala. 693, and in Kavanaugh & Wife v. Thompson, 16 Ala. 827. The act of...

To continue reading