Fuller v. Vincentelli

• Decision Date: 27 January 1921
• Docket Number: 3 Div. 473
• Parties: FULLER v. VINCENTELLI.
• Court: Alabama Supreme Court

87 So. 335

205 Ala. 262

FULLER v. VINCENTELLI.

3 Div. 473

Supreme Court of Alabama

January 27, 1921

Appeal from Probate Court, Montgomery County; Chas. B. Teasley Judge.

Application by Michael Vincentelli, as guardian of Mary Vincentelli, non compos mentis, for the sale of certain property with reinvestment of the proceeds. From a decree granting the relief prayed for, H.B. Fuller, as guardian ad litem appeals. Affirmed.

H.B Fuller, of Montgomery, for appellant.

Hill, Hill, Whiting & Thomas, of Montgomery, for appellee.

SOMERVILLE J.

This appeal is taken by the guardian ad litem from a decree of the probate court of Montgomery county ordering a sale of certain city real estate of a non compos mentis for reinvestment of the proceeds, on the petition of her lawful guardian.

Section 4411 of the Code provides that--

"The court of probate may authorize the guardian to sell any property of the ward, and direct the investment of the proceeds in bonds, notes, or bills of exchange at interest on mortgage security, or in other property or securities, in the name of the ward."

And section 4412 provides that--

"To obtain such order of sale the guardian must make application in writing, verified by affidavit, describing the property sought to be sold, and stating the facts showing that the interest of the ward would be promoted by the proposed sale and reinvestment." (Italics supplied.)

The petition herein exhibited is duly verified, and after describing the property to be sold, and alleging the ownership of the ward as subject to a one year lease to expire on October 1, 1920, it concludes with this averment:

"That she (the ward) derives from said property a very small income, and that said property can now be sold for a good price, and the proceeds of said sale can be invested in property or securities bringing a greater income, and of greater value to said ward than the said property, whereby the interest of said ward would be promoted by said sale and reinvestment."

No objection was taken by the guardian ad litem, by demurrer or otherwise, to the sufficiency of the allegations of the petition, and, upon the testimony taken by deposition and submitted to the court, the sale was duly ordered, made, reported, and confirmed.

The assignments of error attack the validity of the order of sale and of the subsequent proceedings, on the ground that the petition fails to meet the requirement of the statute (section 4412) that the facts should be stated showing that the interest of the ward would be promoted by the proposed sale and reinvestment; and that therefore the petition did not confer jurisdiction on the court in the premises.

In Daughtry v. Thweatt, 105 Ala. 617, 16 So. 920, 53 Am.St.Rep. 146, decided prior to the present statute, it was said that--

"The jurisdiction conferred on the judge of probate could not be called into exercise, without an application disclosing good cause for the sale of property real or personal."

In that case the facts showing the required conclusion were fully set out in the petition, and the petition was held as sufficient in its jurisdictional averments of fact.

So, also, in Holton v. Rogers, 191 Ala. 48, 67 So. 1004, where the facts showing the comparative advantages of the property to be sold and the property to be bought with its proceeds were set out in detail, the petition was held as sufficient for jurisdictional purposes, on a collateral attack.

In Van Houtan v. Black, 191 Ala. 168, 172, 67 So. 1008, 1009, it was said of a guardian's sale under statutory authority:

"It is enough to sustain the proceeding on collateral attack that the

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