U. S. Fidelity & Guaranty Co. v. Pittman

SAYRE, J. — Complainants' (appellees), by their present guardian, filed this bill for an accounting against their former guardian, J. Grover Pittman, now deceased, and the Fidelity Company as surety on his bond. The deceased guardian is represented in the [605] cause by the defendant Elrod, appointed to administer the former guardian’s estate in succession to George E. Lee, after a decree of insolvency. The settlement had in the probate court between these complainants and Lee, as administrator of the estate of the former guardian, and the decree there rendered were res inter alios as to the surety, the Fidelity Company. The surety was not, and is not,- bound by any judgment or decree rendered against the personal representative of its principal. There was and is no remedy against the surety in a case of this character', involving the trust of a guardianship after the death of the principal, other than a bill in equity. There can be, after the death of the principal, no judicial ascertainment elsewhere of his liability which would conclude the surety. — Martin v. Ellerbe, 70 Ala. 326; Street v. Henry, 124 Ala. 153, 27 South. 411; Presley v. Weakley, 135 Ala. 517, 33 South. 434, 93 Am. St. Rep. 39. The fact that, under the statute, the ward may have execution against the surety on the guardian’s bond, where the guardian himself has settled his trust in the probate court, does not give to the decree even in such case the force and effect of a judgment or decree against the surety, as was pointed out in Smith v. Jackson, 56 Ala. 25; Chancy v. Thweatt, 91 Ala. 329, 8 South. 283. The decree in the probate court having been fruitless, or nearly so, there can be no doubt of the general equity of the bill in this case against the surety, nor can it be questioned that the presence of the personal representative of the deceased principal is necessary. We are not required at this time to say what effect the probate decree may have in this cause in the way of limiting any decree that may result against the surety. [606] In appellant’s brief two minor points are taken against the form of the bill. They are without merit. Of one of them we will say that if the failure to attach an exhibit at the place where it was called for by the bill be considered as constituting a blank, .the bill, for that reason, might have been taken off the file on motion under rule 10 of chancery rules of practice; but the contents of the omitted exhibit did not go to the essential equity of the bill, and this defect could not be reached by demurrer. McKenzie v. Baldridge, 49 Ala. 564. The cause was submitted by complainants for a decree of accounting on the original bill and answer, with exhibits. No testimony was taken, nor did the defendants, on their part add anything to the note of submission. The answer, which was not under oath, admitted the substance of paragraphs one and two of the bill, which was that the former guardian had been duly appointed and that the defendant Fidelity Company had become surety on his bond. Paragraph three of the bill averred that “the said J. Grover Pittman, as guardian of the estate of these several complainants, received large sums of money and large amounts of property, a part of the estate of these complainants.” In the answer this was met by the general averment that the allegations of the paragraph of the bill in which it is found were untrue. Averments of the fourth and fifth paragraphs of the bill, to the effect that the former guardian died without having settled his guardianship, and that George E. Lee had been first appointed to administer his estate, were admitted to be true. Succeeding paragraphs set forth the facts, to state them in short: (6) That a decree had been rendered in the probate court in favor of complainants against said Lee; (7) that the former guardian’s estate had been declared [607] insolvent; (8) that defendant Elrod had been appointed administrator of the insolvent estate; (9) that defendant Elrod had made a small partial payment on the probate decree in favor of complainants; (10) that the present guardian had been duly appointed; (11) that the liability of the Fidelity Company as guardian had never been determined judicially or settled; and (12) that the separate interests of complainants had never been segregated. These averments the defendants neither admitted nor denied. They demanded strict proof of them. And now defendants say the court could not order them to an accounting without the proof. Unquestionably the general rule is that when a cause is submitted on unsworn bill and answer without testimony, and the answer is a responsive denial of all the grounds of equity stated in the bill, such answer must prevail against the bill. Latham v. Staples, 46 Ala. 462. But where material matters are stated in the bill, which prima facie are within the knowledge or information of the defendant, if in his answer he fails to deny them, or to express his belief of their falsity, and does not state that he cannot form any belief respecting their truth, they must be considered as admitted. A general denial is insufficient. Still less will a mere demand for proof suffice. There should be a clear and distinct response to each averment of the bill; otherxvise the answer Avill be construed against the defendant. Grady v. Robinson, 28 Ala. 289; Smilie v. Siler, 35 Ala. 88; Moog v. Barrow, 101 Ala. 209, 13 South. 665; Mobile v. Fowler, 147 Ala. 403, 41 South. 468. Applying these principles to the bill and ansAver as we have stated them, it is seen that enough appears by the defendant Elrod’s express implied admissions to charge him as an accounting trustee. The Fidelity Company’s [608] suretyship for him is expressly admitted. Where a fiduciary relation appears, the duty to account is shown. A trustee is bound to account when the court of equity summons him to do so. Whether he ought to be charged will then appear. The decree below will be in all things affirmed. Affirmed. Dowdell, C. J., and McClellan and Somerville, JJ., concur.