Bibb v. Carpenter

PETERS, J. We do not think that there was error in the decree of dismissal. The relief sought is against Samuel T. Carpenter as the guardian of Mrs. Bibb and her sister Annie, and requires an account between said Carpenter or his representative, “ by charging him with all with which he ought to be charged with, and giving him credit with all which he is justly and legally entitled to.”1 And this, too, after his guardianship had been closed by a final settlement, which was not impeached for fraud or mistakes or errors of any kind, and whilst the estate of said Carpenter was unsettled and his representative within the jurisdiction of the court. In such a case the admistrator de bonis non is a proper and necessary party to the bill. The deceased representative was a party to be seriously effected by the decree. The estate of Samuel T. Carter, deceased, was not shown to be utterly worthless, and the sureties were bound only for what his estate failed [587] to pay. — Revised Code, §§ 2450, 3359. The failure to make necessary parties to a bill is a fatal defect on demurrer Phillips v. Threadgill, 37 Ala. 93. Besides, in this case, the bill shows that there had been a final settlement of the guardianship, and that the funds remaining in the hands of the guardian at the final settlement had been disposed of after his death, or had passed into the hands of his successor in the guardianship, and there is no allegation of error, fraud or mistake. In such case, the decrees of the court of probate are to be treated as final Mosely v. Tuthill et al., June term, 1871. The decree of the court below is affirmed at appellant’s costs in this court and the court below-.