Watt v. Allgood
Watt v. Allgood
Opinion of the Court
delivered the opinion of the court.
Section 2128 of the Code of 1880 entitles the guardian of a minor, idiot, or lunatic, who resides out of this State, and which guardian has been appointed in the State of the residence of the ward, to sue for or receive any personal property of his ward in this State, and being entitled to acquire possession of such property, it follows that he may remove it to the jurisdiction of the forum from which he derived his power to act. Therefore, on the facts stated in the petition of the appellant, who complied with our law as to the conditions required to authorize him to sue for the personal property of his ward in this State, the guardian in this State, the appellee, should have been required to answer, and if the petition is true, to make a final settlement of his guardianship, when the appellant may receive and remove the estate, consisting of money in the hands of the appellee. It is true that there may not be two guardians at the same time in the same jurisdiction, but the guardian in this State may -be made to yield to the properly constituted guardian of the non-resident ward who has been appointed in the State of the ward’s residence, and upon the facts admitted by the demurrer should be made to thus yield.
The appointment of a guardian in Alabama did not supersede the guardian here, and the courts of this State must exercise a sound
Decree reversed, demurrer overruled, and cause remanded for the defendant to answer in thirty days after the mandate herein shall be filed in the office of the clerh of the court below.
Reference
- Full Case Name
- J. W. Watt, Guardian v. J. B. Allgood, Guardian
- Cited By
- 4 cases
- Status
- Published
- Syllabus
- 1. Guardianship. Resident guardian. Non-resident guardian. Contest. Section 2128, Code 1880, applied. Under ? 2128 of the Code of 1880, which provides that “when any lunatic resides out of this State, but has personal property in this State, and a guardian has been appointed for such lunatic in the State of his residence, such guardian shall be entitled to sue for, receive, and give a valid acquittance for such property,” where a proper petition, with appropriate exhibits, has been filed by such non-resident guardian in the chancery court of the county where letters of guardianship have been granted in this State, the resident guardian may be compelled to make a final settlement of his guardianship, and deliver the personal property of the ward in his hands over to the non-resident guardian, if the court, in the exercise of a sound discretion, upon the facts established by the petitioner, should deem it proper to close the guardianship in this State. This rule is not affected by the fact of the ward having been a resident of this State when the resident guardian was appointed. 2. Same. Suit by non-resident guardian against resident guardian. Case in judgment.' A. took out, in this State, letters of guardianship of the person and estate of N., a lunatic. He permitted the ward to wander into the State of Alabama, where, two years afterward, she was found by W., who took her to reside at his home in that State, she being the sister of his wife. A. made no effort to recover his ward, and did not see her for ten years after she left this State, nor did he make proper provision for having her taken care of, and-her estate decreased while in his hands from three thousand two hundred dollars to two thousand four hundred dollars. After ÜST.had resided with W. for about eight years, he obtained letters of guardianship of her person and estate in Alabama, and by petition, stating the facts just recited, he applied to the court which had granted letters of guardianship to A., in this State for a decree to compel A. to make a final settlement and turn over to the petitioner the ward’s money in his hands.. A. demurred to the petition, and his demurrer was sustained. Held, that upon the facts stated in the petition, and admitted by the demurrer,'the petitioner is entitled to the relief prayed for; hence, the demurrer should have' been overruled and the defendant required to answer. 3. Same. Appointment of non-resident guardian. Effect on guardianship here. The appointment of a non-resident guardian, in a case such as is above stated, does not supersede the guardianship in this State, but its cessation or continuance is a matter for the determination of the proper court of this State, in the exercise of a sound discretion, where the question is regularly presented.