Martinez v. Meyers

• Decision Date: 12 May 1910
• Citation: 52 So. 592,167 Ala. 456
• Parties: MARTINEZ ET AL. v. MEYERS ET AL.
• Court: Alabama Supreme Court

52 So. 592

167 Ala. 456

MARTINEZ ET AL. v. MEYERS ET AL.

Supreme Court of Alabama

May 12, 1910

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Suit by Mary J. Martinez and others against Elizabeth D. Meyers and others. From a decree sustaining a demurrer to the bill complainants appeal. Affirmed in part, and reversed in part.

Brooks & Stoutz, for appellants.

Fitts &amp Leigh, for appellees.

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 complainants' 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. Waldrom v. Waldrom, 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 need not decide; but it is clear that the failure to...