Willis v. Rice

• Decision Date: 21 July 1904
• Citation: 37 So. 507,141 Ala. 168
• Parties: WILLIS v. RICE ET AL.
• Court: Alabama Supreme Court

37 So. 507

141 Ala. 168

WILLIS v. RICE ET AL.

Supreme Court of Alabama

July 21, 1904

Appeal from Chancery Court, Mobile County; Thos. H. Smith Chancellor.

Action by Kate Rice and others against Byrd C. Willis. From a decree overruling demurrers to the amended bill, defendant appeals. Reversed.

The purpose of the bill and the averments of the bill as amended are sufficiently shown in the opinion. The respondent, Byrd C. Willis, demurred to the bill as amended upon the following grounds: "(1) Bill filed for an accounting of a guardianship, when it is affirmatively shown that a settlement has been had and guardian discharged, and does not seek to set aside settlement. (2) Bill affirmatively shows an accounting between complainants and respondent has been had and a decree rendered discharging respondent, but does not seek to set aside said decree. (3) Bill affirmatively shows that the probate court of Mobile county has rendered a decree discharging respondent as guardian of complainants, and sets out no state of facts why the decree should be disturbed. (4) It is not shown how respondent took advantage of complainants in the matter of signing paper acknowledging a full accounting. (5) No injury is shown to have resulted to complainants by reason of the decree of the probate court discharging respondent. (6) No notice to complainants of their application to the probate court of Mobile county for respondent's discharge was necessary to the rendition of a valid decree. (7) Bill affirmatively shows it was not brought within the time required by law. (8) Bill affirmatively shows that it is barred by the statute of limitation of three years. (9) No excuse is alleged for not filing sooner the bill to open decree of the probate court. (10) Bill shows no ground for accounting by respondent to complainants."

Thornton & Inge, for appellant.

Ervin &amp McAleer, for appellees.

DOWDELL J.

The bill in this case is filed by Mrs. Kate Rice, née Brasfield and her sister, Sallie Brasfield, against the appellant, Byrd C. Willis, to compel an accounting and settlement by him of his guardianship of their estate. The bill, after amendment, was demurred to, and from the decree of the chancellor overruling the demurrer the present appeal is prosecuted.

The bill shows that the respondent, Willis, was appointed guardian for the complainants, and as such had the management and control of their estates. When he became guardian the complainants were both minors of tender years, and his guardianship continued throughout their minority, and until each, respectively, attained her majority. The bill further shows that a considerable amount of property, real and personal belonging to the complainants, came into his hands but for want of information from their guardian they were unable to definitely describe the property, or to give the dates when he received the same. It is alleged that on April 10, 1891, the said Willis made a partial settlement of his accounts as such guardian in the probate court of Mobile county, whereby it was then ascertained that he was indebted to the complainant Kate Brasfield in the sum of $1,851.06, and to the complainant Sallie Brasfield in the sum of $1,942.71, since which time no account has ever been stated by their said guardian. It is shown that subsequent to such partial settlement other property of complainants came into the hands of said Willis from different sources. The bill further charges that the respondent used complainants' money for his own account and benefit, lending out some, and with some paying off mortgages on his own property. That he used $3,250 of complainants' money in the purchase of a house, and afterwards, on June 7, 1900, put on record in Mobile county deeds conveying this property to the complainants at a recited consideration of $5,000, but that he continued to receive the rents from said property until April, 1901; that he allowed the taxes to accumulate on said property. It is also charged that, as each of the complainants came of age, or shortly thereafter, the said Willis induced them to sign a paper prepared by himself, reciting that he had had a full settlement of his accounts with them; and it is further averred that he used such paper to have himself discharged as such guardian by the probate court, without any notice to the complainants; that in getting each of them to sign such paper he took advantage of their youth and inexperience, and of his influence over them, he being their guardian, and their uncle by marriage. The bill then avers that no accounting in fact was ever had with complainants, nor was any ever had in the probate court. The bill further shows that after signing such papers the complainants repeatedly tried to get a statement from the respondent, but that he always put...