Rittenberry v. Wharton

• Decision Date: 02 April 1912
• Citation: 58 So. 293,176 Ala. 390
• Parties: RITTENBERRY ET AL. v. WHARTON.
• Court: Alabama Supreme Court

58 So. 293

176 Ala. 390

RITTENBERRY ET AL. v. WHARTON.

Supreme Court of Alabama

April 2, 1912

Appeal from Chancery Court, Jefferson County; A. H. Benners Chancellor.

Action by Maybelle Wharton against Kate Rittenberry and others. From a decree overruling demurrers to amended complaint defendants appeal. Affirmed.

Howze &amp Howze, of Birmingham, for appellant Rittenberry. Coleman, Dent & Weil, of Montgomery, for appellant Guaranty Co. George Huddleston, of Birmingham, for appellee.

DOWDELL C.J.

This appeal is taken from a decree overruling the demurrers to the complainant's amended bill.

The bill was filed by Mrs. Wharton, the appellee, against Mrs. Rittenberry, the appellant, as complainant's former guardian, and the United States Fidelity & Guaranty Company, surety on the guardian's bond, to set aside and annul a decree of final settlement of the guardianship, rendered by the probate court, on the ground of fraud, and to reopen and settle the guardianship accounts.

The case made by the bill is, in brief, as follows:

When the complainant was in her fourteenth year, her father died; her mother having died several years previously. Complainant's older sister, Mrs. Rittenberry, applied for and was appointed her guardian by the probate court of Jefferson county in 1903, and made no final settlement, except the one attacked by the bill; and no proceedings for final settlement were pending in any court. Complainant regarded her said sister as the head of the family, resided with her until shortly before the bill was filed in 1910, and submitted to her authority, guidance, and control, as well as to her management of complainant's affairs, until complainant's marriage in 1909. Respondent's husband, Baxter Rittenberry, had large influence over complainant in all business matters, and largely and chiefly had charge of the guardianship matters and of complainant's property, although acting in the name of his wife and with her authority and permission; and the acts complained of were done by him as his wife's agent, and within the scope of his authority as such, though, in the belief of the complainant, the respondent, her said sister, had not at all times had full knowledge of her husband's acts in the administration of such guardianship. Complainant regarded her sister's husband as a brother, trusted him, and relied upon his advice and good faith. Complainant, while fairly well educated in literary branches, had no business education nor experience, and as to such matters generally relied upon and accepted the advice of her sister and of her brother-in-law.

In October, 1908, complainant, then having become about 19 years of age, became dissatisfied with the way her affairs were being managed by respondent and her said agent, and told them that she desired her disabilities of nonage removed, which they at first objected to, but later agreed to have done. And on October 26, 1908, her sister and her sister's husband caused the attorneys who had been representing Mrs. Rittenberry in such guardianship to file a petition to have her disabilities removed; but her sister's husband, making sundry excuses, delayed the matter until June 22, 1909, when the decree was finally rendered; and this delay was to stave off a settlement, and to retain his control and the benefit of complainant's funds and property as long as possible.

Said decree provided that complainant, then Maybelle Moran, "be and she is relieved of the disabilities of nonage, and she is vested with the power to sue and be sued, contract, and be contracted with, to buy, sell, and convey real estate, and generally to do and perform all acts which said minor could do, if 21 years of age, except that she may make acquittance to her guardian only after a settlement in the probate court where her guardianship is pending, in which she shall be represented by a guardian ad litem, in which she may accept service and waive time and notice." Dated June 22, 1909.

On said June 22, 1909, while complainant was sick in her room in her sister's residence, respondent's said husband and agent presented to her a writing, which he represented to her was her consent that she be relieved of her disabilities of nonage by the court, and that it was necessary for her to sign the same; and that, relying on and believing such statement, she signed and delivered to said Baxter Rittenberry a paper, reading as follows (except that the name of the guardian ad litem was then in blank): "In the Probate Court of Jefferson County, Ala. In the Matter of the Estate of Maybelle Moran. I, the said Maybelle Moran, having this day been relieved of the disabilities of nonage by the chancery court of Jefferson county, Ala., do hereby nominate David J. Davis, Esq., of said county and state, as my guardian ad litem, to represent me upon final settlement of the accounts of my guardian, Mrs. Kate Rittenberry, in the probate court of said county, same being in accordance with the decree of said chancery court relieving me of the disabilities of nonage. I do also hereby waive notice of the time of making said final settlement, and I do hereby consent that the same may be heard any time that may be agreed upon by my said guardian ad litem. This 22d day of June, 1909. Maybelle Moran. Attest: Baxter Rittenberry." That complainant did not understand the purport of said writing, nor think it other than Baxter Rittenberry had represented it to be; nor did she at any time contemplate or agree that there should be a final settlement of her guardian's accounts without notice to her, and without an opportunity on her part to be present, nor that said Davis should represent her as guardian ad litem. That in obtaining her signature to said paper said Rittenberry was acting as her guardian's agent, and with the intent to injure, defraud, and deceive complainant, and to prevent a fair and equitable settlement of her accounts.

The final settlement in the probate court was put through the next day, June 23, 1909, said David Davis being appointed by the court as her guardian ad litem, filing his consent and formal contest of the settlement, but that said settlement was had without complainant's presence or knowledge, and without notice to her by service of process or otherwise. That, prior to that time, respondent had told her that as soon as her disabilities were removed her property would be turned over to her. On the morning of June 23, 1909, respondent's said husband requested her to meet him at a later hour in the day at a certain bank in Birmingham, where he would pay her the money that defendant held as her guardian. That at the appointed time and place respondent's husband, accompanied by respondent's attorney, paid complainant $3,683.21, and said attorney presented to her a receipt in writing, to be signed, which said Rittenberry represented was a receipt for the money paid her, and which she did sign. It was as follows: "$3,683.21. Received of Kate Rittenberry thirty-six hundred eighty-three and 21/100 dollars in cash, same being the balance as ascertained by the probate court of Jefferson county, Ala., to be due me, and I also acknowledge receipt of my one-half interest in the Locassio note and mortgage, which mortgage is recorded in office of judge of probate of Jefferson county, Ala., vol. 392, p. 183; same being in full settlement of my estate by said Kate Rittenberry as my guardian. This 23rd day of June, 1909. Maybelle Moran. Attest: W. J. Wynn." That said final settlement had not been had when the receipt was signed; and hence complainant was made to exceed the powers of acquittance provided for in the decree relieving her of disabilities. That said receipt did not speak the truth. That in signing same complainant intended merely to acknowledge payment of the sum therein named. That she did not know defendant wished to use same in making a final settlement, and that, though defendant's agent and attorney well knew at the time they procured her signature that said settlement would be had on that day, said agent concealed that fact from her, with the design to prevent her presence.

The bill sets out a copy of the accounts of the guardian, filed June 23, 1909, and of the decree of final settlement rendered by the probate court on the same day, approving the accounts and discharging Mrs. Rittenberry as guardian. Said accounts show a total debit of $11,957.27, and total credits of $8,274.06, leaving a balance due the ward of $3,683.21.

The bill avers that one of the items of credit, to wit, "By amount paid Frank Saunders for house and lot for ward $4,750," is false and fraudulent. That, to induce the court to allow such credit, the guardian, or her husband or attorney, presented to the court as a voucher a writing, as follows: "Received of Kate Rittenberry, guardian for Maybelle Moran, $4,750.00 for one house and lot on St. Chas. St. No. 1505, in Birmingham, Jefferson county, Ala. This 15th day of May, 1909. Frank Saunders." That on said May 15, 1909, said Baxter Rittenberry and Frank Saunders owned said house and lot jointly. Several months prior to the settlement, Baxter Rittenberry had urged complainant to buy this house and lot, and she had refused. That on April 8, 1909, said Rittenberry and Saunders mortgaged the same, the guardian joining therein, for $3,000; the principal sum falling due in 1914. That after the date of the above receipt, wherein Frank Saunders acknowledges payment of $4,750 for the property by the guardian, Baxter Rittenberry and his wife, on May 29, 1909, executed a deed to said Saunders, conveying a half-interest in said property, expressing a consideration of $450, and that in July, 1909, after the settlement, Saunders executed a deed to complainant to said property, expressing a...