Ramsey v. McMillan

• Decision Date: 03 December 1925
• Docket Number: 2 Div. 878
• Citation: 106 So. 848,214 Ala. 185
• Parties: RAMSEY v. McMILLAN.
• Court: Alabama Supreme Court

106 So. 848

214 Ala. 185

RAMSEY v. McMILLAN.

2 Div. 878

Supreme Court of Alabama

December 3, 1925

Rehearing Denied Jan. 21, 1926

Appeal from Probate Court, Wilcox County; P.M. Dannelly, Judge.

Motion of J.H. Ramsey, as guardian of the estate of Jennie Rucker non compos mentis, to surcharge the account of E.E. McMillan late guardian of said estate, with certain items on final settlement. From a decree overruling the motion, movant appeals. Affirmed in part; in part reversed and remanded.

I.I Canterbury, of Linden, for appellant.

Bonner & Miller, of Camden, for appellee.

THOMAS J.

The appeal is from the decree of the probate court overruling motion of appellant to charge the account of the appellee, the retiring guardian, with designated items of personal property, and also from the judgment allowing certain expenditures to the credit of said guardian.

It is the duty of a guardian to collect and take into possession the assets of the ward, and discharge the duties of the trust in the same manner that a careful and prudent business man manages his like personal affairs. It follows from this general rule that the guardian is responsible for the properties of the ward coming into his hands, or that should have been reduced to his possession (Edmondson v. Jones, 204 Ala. 144, 85 So. 799; Mason v. Buchanan, 62 Ala. 110; Hughes v. Mitchell, 19 Ala. 268, 12 R.C.L. 23), and that he is required to use due diligence in managing and taking care of the ward's estate (McLean v. Hosea & Godbold, Guardians, 14 Ala. 194, 48 Am.Dec. 94; Leach v. Gray, 201 Ala. 47, 77 So. 341, 7 A.L.R. 890; McGowan v. Milner, 195 Ala. 44, 70 So. 175). And, if the property of the ward is lost or injured through the negligence or misfeasance of the guardian, the latter is liable to the extent that any trustee would be liable under the same circumstances. Thompson v. Thompson, 92 Ala. 545, 9 So. 465; Newman v. Reed, 50 Ala. 297. That is to say, the guardian must show due diligence, or that such would have accomplished nothing as to the property in question. Stewart v. McMurray, 82 Ala. 269, 3 So. 47; Lane v. Mickle, 43 Ala. 109; Leach v. Gray, 201 Ala. 47, 77 So. 341, 7 A.L.R. 890; Grace v. Perunbo, 202 Ala. 504, 80 So. 792.

The duty in management of the estate of the ward is indicated by statute. Code 1923, 8149; McGowan v. Milner, 195 Ala. 44, 70 So. 175; Bean v. Harrison (Ala.Sup.) 104 So. 244; Scott v. Reeves, 131 Ala. 613, 31 So. 453. It is also required by statute that an inventory be filed. Code 1923, 8148. The rule for inventories of trust estates is a reasonable one and intended for the protection of those who cannot protect themselves. It has been held that, though the testator exempt the personal representative, in administration of a decedent's estate, from the requirement of giving bond, filing inventories, and reporting his actions in the administration of the trust to the court, the inventory may be duly required by decree (Naugher v. Hinson, 211 Ala. 278, 100 So. 221; Parker v. Robertson, 205 Ala. 434, 88 So. 418), though this failure is not ground for the removal of a personal representative, where there is no loss to the trust estate and the failure is from inadvertence (Willoughby v. Willoughby, 203 Ala. 138, 82 So. 168). The statute as to administrations of estates of decedents (section 2579 of the Code 1907) is different from that in guardianships (sections 4375, 4440). It is declared that neither a failure to file annual accounts, nor negligence, which works no injury, and that is no mala fides, can deprive a guardian of compensation. Neilson v. Cook, 40 Ala. 498; Spies v. Stikes, 112 Ala. 584, 20 So. 959; Smith v. Kennard, 38 Ala. 395.

The record discloses that at the inquisition under the statute (Code 1907, 4345 et seq.) McMillan was present, advising or aiding Miss Rucker; and, when that proceeding culminated in a judgment to the effect that she was a person of unsound mind, he was duly appointed by the court as her guardian. In the discharge of his duties, he immediately went to the home where she lived with her mother, and inquired of her mother as to the properties and effects of the ward. At this time the mother made claim of ownership to the personal properties in question, which the guardian acknowledged, except the two mules and the storehouse and contents and rents. The ward had done this, in effect, in returning her properties for the purpose of taxation.

Upon the death of the mother the personal representative was duly appointed and administered that estate, there was an order for the sale of said decedent's properties, and the ward's interest therein passed to McMillan, as guardian. The ward was duly made a party to the proceedings in administration and distribution of the mother's estate and properties. The record evidence of the estate of the mother and the sale of the properties of that decedent disclosed and showed the properties sold for division to have been those of the mother. The decree of sale shows that said ward was a party to this settlement and duly represented. Jones v. Hubbard, 208 Ala. 269, 94 So. 167. As we have indicated, the testimony of the guardian is corroborated by the assessment for taxes--that the ward owned only the two mules, and not the other property made the subject of the motions to charge the guardian.

The presumption is in favor of the order and decree rendered by the probate court after full hearing of the objections and motions to charge and the evidence (oral and documentary) in support or denial thereof. Williams v. Gunter, 28 Ala. 681; Henderson v. Henderson, 67 Ala. 519; Milner v. Lewis & Son, 20 Ala.App. 598, 104 So. 444; Cox v. Stollenwerck (Ala.Sup.) 104 So. 756. The general rule obtaining in such a case is that, on appeal from a probate decree as to a disputed question of fact, it requires a very clear conviction of error to justify a reversal. Henderson v. Henderson, 67 Ala. 519; McFry et al. v. Casey, 211 Ala. 649, 101 So. 449; Ray v. Watkins, 203 Ala. 683, 85 So. 25; Goldsmith v. Gates, 205 Ala. 632, 88 So. 861; Kirksey's Case, 41 Ala. 626(7). We will later advert to the rent of the mules for the years 1920-21.

The several objections to credits for...