Montgomery v. Montgomery

• Decision Date: 21 April 1938
• Docket Number: 5 Div. 279.
• Citation: 236 Ala. 33,180 So. 709
• Parties: MONTGOMERY v. MONTGOMERY.
• Court: Alabama Supreme Court

180 So. 709

236 Ala. 33

MONTGOMERY v. MONTGOMERY.

5 Div. 279.

Supreme Court of Alabama

April 21, 1938

Appeal from Circuit Court, Lee County; Will O. Walton, Judge.

Bill by Lillian M. Montgomery, as guardian of Louis Walton Montgomery, a non compos mentis, to sell and mortgage property of the ward to pay debts, opposed by R. C. Smith appointed as guardian ad litem for the ward. From a decree granting the relief prayed, Louis Walton Montgomery, by his guardian ad litem, R. C. Smith, appeals.

Affirmed.

R. C Smith, of Opelika, for appellant.

Denson & Denson, and L. J. Tyner, all of Opelika, for appellee.

KNIGHT Justice.

The bill in this cause was filed by Mrs. Lillian M. Montgomery as guardian of Louis Walton Montgomery, non compos mentis seeking a decree of the court authorizing her to sell and mortgage certain of the real and personal property of her ward for the payment of his debts, incurred before the inquisition against him. The bill also prays for the removal of the administration of the guardianship from the probate court to the circuit court in equity under the provisions of section 8102 of the Code.

The court granted the relief prayed for, and from this decree the present appeal is prosecuted.

The proceeding in this cause served to invoke the ordinary powers of the chancery court over the estate of the non compos mentis, and of the administration of the guardianship. Evans v. Crump, 232 Ala. 521, 168 So. 879; Hamilton et al. v. James, 231 Ala. 668, 166 So. 425; First National Bank of Oneonta et al. v. Robertson, 220 Ala. 654, 127 So. 221.

The bill avers sufficient facts to show the existence of valid and subsisting debts, created and incurred by the non compos at a time when he had capacity to contract the same, and also a pressing necessity for the payment of the same. The estate of the ward consists largely of real estate, and some bank stock. The guardian has no money with which to pay these debts, and the creditors are pressing her for payment, threatening suits and judgments, and sales under execution. The income from the properties of the estate is wholly insufficient to meet and discharge these debts, either in whole or in part.

The bill avers facts sufficient to show that it is to the interest of the ward's estate that the bank stock and certain of the real estate should be sold, and the proceeds applied pro tanto to the payment of the debts, and that to obtain the balance necessary to liquidate the indebtedness in full, the guardian should be authorized to borrow this needed balance, to be secured by a mortgage on certain other real estate of the ward. In these respects the facts averred make a case for equitable relief.

Irrespective of sections 8102 and 8180 of the Code, the chancery court possesses the power to authorize the guardian of a non compos mentis to sell or mortgage the real and personal property of the ward, whenever it becomes necessary to pay the debts of the estate, or to provide necessary maintenance and support for the non compos mentis, and of his family. We do not think that this power in a court of equity, to authorize the sale or mortgage of the ward's property by the guardian, in a proper case, can be questioned. The principle is too firmly established in this jurisdiction to admit of doubt. Montgomery et al. v. Perryman & Co., 147 Ala. 207, 41 So. 838, 119 Am.St.Rep. 61; Evans v. Crump, supra; First National Bank of Birmingham v. De Jernett, 229 Ala. 564, 159 So. 73; Warren v. Southall, 224 Ala. 653, 141 So. 632. The courts of chancery possess and exercise general supervision and control over the estate of wards, and when this plenary jurisdiction is properly invoked, it may, to subserve the interest of the estate, authorize the guardian to borrow money, and secure the same by pledge or mortgage. Hence the decree of the court below in this respect is amply supported by the decisions of this court.

But it is insisted that the court of probate of Lee county never acquired jurisdiction of the alleged non compos mentis; that the lunacy proceedings which were instituted in that court, and which culminated in the decree adjudging Mr. Montgomery to be of unsound mind, were absolutely void; that, therefore, the appointment of Mrs. Montgomery as guardian of her husband was also void.

It becomes, therefore, necessary to determine whether Mr. Montgomery was legally adjudged to be of unsound mind. Of course, the legality of the appointment of Mrs. Montgomery as guardian of her husband is dependent upon the fact that Mr. Montgomery was legally declared to be of unsound mind, and, of course, unless the record furnishes the evidence for the exercise of the authority, the appointment itself must fall. In such event, the complainant would be without authority to file this bill. Eslava et al. v. Lepretre, 21 Ala. 504, 56 Am.Dec. 266; Moody v. Bibb, 50 Ala. 245; Molton v. Henderson, 62 Ala. 426; Craft v. Simon, 118 Ala. 625, 24 So. 380.

In the case of Craft v. Simon, supra, it is held that the jurisdiction to appoint guardians for persons of unsound mind is as extensive as in the case of probate of wills, the granting of letters of testamentary, sales of property of intestates, allotment of dower and partition of lands.

Section 8103 of the Code provides that "the court of probate has authority, and it is a duty, to appoint guardians for persons of unsound mind residing in the county, having an estate, real or personal, and of persons of unsound mind residing without the state, having within the county property requiring the care of a guardian, under the limitations, and in the mode hereinafter prescribed."

Sections 8103, 8104, 8105, 8106, 8107, 8108, and 8109 prescribe the proceedings to be had and followed before there can be a valid appointment of a guardian for a person of unsound mind.

The record in this case discloses that Mr. Montgomery, the alleged non compos mentis, was, at the time of the filing of the petition by Mrs. Montgomery in the probate court of Lee county, Ala., to have him adjudged of unsound mind, a resident citizen of Lee county; that he had continuously resided in said county with his family for many years. However, it appears that some time prior to the filing of the inquisition proceedings, Mr. Montgomery had become of unsound mind, and had...