Bentley v. Dailey

McCLELLAN, J. This is an appeal from a decree on the final settlement of a guardianship. Two exceptions reserved by the ward in the court below are insisted on here, and these only will be considered, though the assignment of errors embraces others. — 1 Brick. Dig. p. 102, § 285. These exceptions go to the allowance on this settlement of a credit of $548, collected in Confederate currency, which became valueless by reason of the result of the war, and the amount paid by the guardian to one Cobb, for board of the ward in 1870 and 1871, both of which credits had been allowed on previous annual settlements; and the action of the court now complained of seems to have been influenced by the fact of such former allowance. The court had a right, and it was its duty, to look to the records of all the annual settlements which had been made according to law. The records of former annual settlements were a part of the cause on the final settlement. —Foust v. Chamblee, 51 Ala. 75. The annual settlements of 1870 and succeeding years appear to have been regularly made. The allowance of the credits excepted to, in the settlements of 1870 and 1871, raises a [408] presumption of their correctness, which shifted the burden of proof in regard to them from the guardian to the ward. The former may stand upon the settlement, and the latter must impeach it by affirmatively showing the incorrectness of the allowance.—Code, § 2458; Ashley's Adm'r v. Martin, 50 Ala. 537; Radford's Adm'r v. Morris, 66 Ala. 283. The fact that the Confederate money was collected on land notes taken by the guardian in 1859 and 1860, in payment of a decree for his ward’s distributive share in the estate, is not sufficient to overturn the presumption of correctness. For aught that appears in the record, this action on the part of the guardian may have been to the best interest of the ward, and the only means of collecting the decree; and if, in receiving the notes, he acted with care and diligence, and was also diligent in their collection in funds current at their maturity, he should not be charged for taking them in the place of money in the first instance; nor for receiving Confederate money in payment of them; nor for the loss of this money in his hands, if he exercised the diligence and care which would have characterized the conduct of a prudent man under like circumstances, in dealing with it after he received it. —Mason v. Buchanan, 62 Ala. 110; Stewart v. McMurray, 82 Ala. 269. The evidence offered by the ward to charge the guardian with this item, shows only the receipt of the notes in partial satisfaction on the distributive decree, that they were collected in Confederate currency, and that this money was in the guardian’s hands, and, of course, valueless after the war. This is wholly insufficient to rebut the presumption of good faith and diligence raised by the decree on the annual settlement of 1870, and the guardian was properly allowed credit for this item. As to the credits for board paid to Cobb, we are satisfied that the court erred. The uncontroverted evidence of the ward shows, that he never owed Cobb for board or anything else; and if this testimony was untrue, it could have been contradicted by the evidence of Cobb himself, who is shown to have been a resident of the county at the time of the trial. The presumption of correctness, arising from the former allowance of these credits, was overturned; they were shown to be incorrect, and their allowance by the court was error, for which the decree must be reversed, and the cause remanded. Reversed and remanded.