Cockrell v. Cockrell

Supreme Court of Alabama
Cockrell v. Cockrell, 36 Ala. 673 (Ala. 1860)
Walker

Cockrell v. Cockrell

Opinion of the Court

R. W. WALKER, J.

One of the causes, for which the legislature has declared that the judge of probate must remove a guardian, is his removal from the State. — Code, § 2037. The provision that a guardian, who becomes a non-resident after his appointment, must be removed from his trust, necessarily implies that one who is at the time a non-resident should not be appointed. A fact which is declared to be a sufficient reason for the removal of a guardian, duly appointed, is, in the very nature of things, a sufficient reason for not bestowing the appointment in-the first place. We have no hesitation in holding, that under our statutes, the appointment of a non-resident, as guardian of a ward residing in this State, is an improvident appointment, which it is the duty of the court to revoke, when proper application is made for that purpose. See Harris v. Dillard, 31 Ala. 191-2; Dupree v. Perry, 18 Ala. 41; Eiland v. Chandler, 8 Ala. 781; Speight v. Knight, 11 Ala. 461; Huie v. Nixon, 6 Porter, 77.

The Code provides, that “when the minor is over fourteen years of age, he may nominate a suitable person as his guardian, in person; or such nomination may be certified by any justice of the peace to the probate judge.” — Code, § 2013. The ward in this case had reached the age of fourteen years, and nominated a guardian in the manner prescribed; but it appears that the person thus named was not willing to accept the trust. It may be true that, in the absence of some other sufficient reason for the revocation of his authority, the guardian of a ward, who has reached the age of fourteen years, should not be removed, until the ward nominates a suitable person who is willing to accept the appointment; and we might, perhaps, affirm the decree, if it had not been shown that there .was ano*675tber legal cause for tbe removal of tbe guardian — namely, the fact that be was a non-resident. Tbe letters of tbe guardian should have been revoked on this latter ground, without regard to the age of the ward, or the willingness of the person nominated by him to accept the trust.

Decree reversed, and cause remanded.

Reference

Full Case Name
COCKRELL v. COCKRELL
Status
Published