Opinion
4 Div. 332.
May 19, 1927. Rehearing Denied June 15, 1927.
Appeal from Probate Court, Geneva County; D. G. Roach, Judge.
E. C. Boswell, of Geneva, for appellant.
Appellant is the nearest relation to the ward, and is entitled to a preference over appellee. Her appointment as guardian would be to the best interest of the ward. Code 1923, § 8117; Boylan v. Kohn, 172 Ala. 275, 55 So. 127.
Carmichael Tiller, of Geneva, for appellee.
There is no rule of absolute preference of relations; the court should have in view the best interest of the lunatic. Boylan v. Kohn, 172 Ala. 275, 55 So. 127; 22 Cyc. 1139. The interests of the guardian should not be antagonistic to the interests of the estate. 28 C. J. 1076; Lee v. Lee, 67 Ala. 406; Desribes v. Wilmer, 69 Ala. 25, 44 Am. Rep. 501. The court might intrust the person of the ward to one guardian and the estate to another. Murphree v. Hanson, 197 Ala. 254, 72 So. 437; 32 C. J. 653; 4 Port. 392.
The appeal is from an order of the probate court selecting and appointing a guardian of the estate of a person of unsound mind.
The contest is between a daughter and a brother of the ward. On hearing the testimony orally the court selected the brother.
In Boylan v. Kohn, 172 Ala. 275, 55 So. 127, this court carefully considered the statute, now section 8117 of the Code. It was said:
"The paramount consideration of the law has always been the best interests of the ward and of his estate, and this is peculiarly the case in respect to the selection of his guardian. And when the law declares a preference in favor of any class of persons, it is only because of the assumption, sanctioned by the laws of human nature and experience, that the person thus preferred will best administer the trust in favor of the ward, and not because the law recognizes any rights inhering in relationship per se. This principle is not only recognized in the statute, but is enjoined in mandatory terms. And we can entertain no doubt, in view of the declared principles of the common law, and the plain language of the statute itself, that the advantage of the estate remains the paramount purpose of the law, and overshadows in importance any claims of relatives to undertake its management."
The statute was declared not mandatory in favor of the nearest relative, if that relative be fit and competent, regardless of the superior qualifications of a more remote relative; that the court has a judicial discretion not to be disturbed except for manifest abuse. The clear statement of the law in that case leaves nothing to be said.
The moral qualifications of either applicant is not questioned. Evidence of business experience and capacity is presented on both sides. In point of experience the brother, 47 years of age, appears to have the advantage of the daughter, 21 years of age. Both are married and each has the care of a family. The trial court found a handicap to the daughter in the dominating influence of an uncle on her father's side, who is shown to be heavily indebted to the estate in which the ward and her daughter share equally. There appears to have been no administration on the estate.
In view of the presumption in favor of the ruling, where the court had the parties and witnesses before him, we cannot say his finding in this regard is without support in the evidence. Activity in prompting this litigation has some outcropping in the evidence.
In the matter of care for the person of the ward, the evidence seems to us to favor the daughter. No complete mental collapse nor fear of violence toward herself or others appears. The delicate task of leaving the mother free to enjoy all there may be in life for her, shielding her from the danger of falling or other needless suffering from her recurring attacks, and contributing to her comfort in the many ways a daughter may, presents a feature of the case quite as vital as the conservation of her estate and its proper use on her behalf.
Without good cause the home relations should not be disturbed, and much be left to the wishes of Mrs. Donnell, the ward, subject to conditions as they may arise. It seems to us she needs both her brother and daughter in the proper care of her estate and her person. Their co-operation to this end, under the supervision of the court, will be the true test of their loyalty to her interest. Proper allowances for care of this ward may be made. There need be no joint guardianship. That the estate, real and personal, is jointly owned by the daughter and her mother furnishes no reason why the guardianship should be granted to the daughter.
Good management and proper accounting as between the two rather favors the appointment of the brother. The order selecting Abe Spears, the brother, as guardian will not be disturbed.
But we cannot approve the order of November 6, 1926, in so far as it purports to grant letters of guardianship upon the security of a bond filed and approved August 19, 1926, pursuant to appointment of that date. The record shows that on the 23d day of August, 1926, this order was vacated and held for naught. This operated a removal of the guardian.
Usually the surety on a guardian's bond is liable only for funds coming to his hands prior to his removal. Nothing in the record shows the National Surety Company to be a party to the later proceedings, or otherwise renewing the suretyship under the same bond so as to cover a new guardianship. The safety of a trust should not be left to the hazards of doubtful and incomplete records. That the former appointment was vacated by agreement in order to open the matter for a hearing de novo does not affect the situation. No assignment of error presents this question. The parties concern themselves as to their respective claims to the guardianship. But, the matter being within the jurisdiction of this court upon appeal, we take notice of it under the general power and duty of courts to protect trust estates.
The decree or order of November 6, 1926, from which the appeal is taken is modified by striking out that portion of the decree granting letters of guardianship upon the security of a former bond, and, as so modified, that decree is affirmed. Upon the execution of a new bond conditioned as prescribed by law in an amount fixed by the judge of probate and with sureties approved by him, the order granting letters of guardianship should be entered, modified, and affirmed.
Modified and affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.