Willis v. Rice
| Citation | 39 So. 991 |
| Parties | WILLIS v. RICE ET AL. |
| Decision Date | 30 June 1905 |
| Court | Supreme Court of Alabama |
Appeal from Chancery Court, Mobile County; Thomas H. Smith Chancellor.
"Not officially reported."
Suit by Kate Rice and another against Byrd C. Willis. From a decree overruling demurrers to the bill, defendant appeals. Affirmed.
J Blocker Thornton and Wm. B. Inge, for appellant.
Erwin & McAleer, for appellees
The bill in this case was filed June 25, 1902, to compel an accounting and settlement by appellant as guardian of complainant. Upon the former appeal (37 So. 507) it was held that the demurrer to the bill raising the defense of the statute of limitations should have been sustained as to Mrs Kate Rice, one of the complainants. The other demurrers to the bill it was held were properly overruled. Upon the remandment of the cause the bill was amended by averring additional facts to show the existence of influence by the guardian, and facts to relieve the bill from the bar of three years as to Mrs. Rice. The demurrers were refiled to the bill as amended, and from the decree overruling them this appeal is taken.
Under the decision of this court upon the former appeal, to which we adhere, the only question now presented for consideration is whether the facts averred in the bill as now amended relieve it from the bar of the statute of limitations formerly held to exist. It is averred that Byrd C. Willis, the guardian, removed to Virginia several years prior to 1898, and that he has since resided there; that in November, 1901, complainant, Mrs. Rice, learned for the first time that her guardian had received $900 as the interest of complainants in the proceeds of certain lands in Choctaw county; and that up to such time she knew nothing of the existence of such interest. It is averred that Mrs. Rice knew, when giving the receipt December 17, 1898 (acknowledging a full settlement and praying a discharge of the guardian by the probate court of Mobile), that the guardian had received money for account of herself and her sister from the estate of a relative that had died, but that she knew nothing of the amount, nor dates of the same. It is further averred that a statement rendered by the guardian, inclosed in a letter to Mrs. Rice, of date March 14, 1901, was the first information she had received from any source tending to show the amount received by her guardian, and that she was not advised of her rights until the winter of 1901, after she came to Alabama, and that shortly thereafter she employed counsel to obtain a statement from her guardian. It is further averred that Mrs. Rice did not know that Willis had been discharged as her guardian by the probate court of Mobile until the employment of counsel in 1902, and she was informed of the fact by him.
The bill as amended avers that Byrd C. Willis, the guardian removed with his three sons to Virginia, which removal was several years prior to 1898, and that he has ever since resided there. "The uniform construction of the statute of limitations has been that it is only personal presence within the state,...
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Dedmon v. Falls Products Incorporated, 19039.
...the saving of the statute because of residence without the State." To like effect is Wright v. Preston, 55 Ala. 570, 576, and Willis v. Rice, Ala., 1905, 39 So. 991. A different result in the present case is not required by the late decision of Peters v. Tuell Dairy Co., et al., 1948, 250 A......
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Willis v. Rice
...Rice and another against Byrd C. Willis. From a decree for complainants, defendant appeals. Affirmed. See, also, 141 Ala. 168, 37 So. 507, 39 So. 991. Inge Armbrecht and Hamilton & Thornton, for appellant. Erwin & McAleer, for appellees. DENSON, J. The purpose of this litigation is to compe......