On appeal from the probate court of Holmes county.

J. Thurmon, appellee, filed his petition in the probate court of Plolmes county, in which he states that he is the administrator of M. Thurmon, his former wife; that appellant was the guardian of said decedent; that he, appellant, has in his possession part of the effects; that petitioner is entitled to the possession thereof; prays that the said Hunter surrender his letters of guardianship of said Minerva, and deliver said effects to petitioner. Appellant in his answer admits, that appellee is administrator of said Minerva, and that she was his wife, and that he is and was her guardian; that as such guardian he has, when required, made annual settlements with the probate court; that he delivered all of her property to said decedent in her lifetime, except a note on J. J. Spurlock, for $680, which note is subject to a deduction of $77; that he placed said note in the hands of a lawyer for collection, and that he, appellant, has as yet received no part thereof; that said Minerva died childless, and that respondent’s wife is her only sister and heir-at-law; that his wife, as heir-at-law, is entitled to said note, said appellee never having reduced it to possession; that said Minerva owed no debts, and that appellee is not authorized to recover said note ; that about $100 at one,' and $70 at another annual settlement, were decreed to be due him from his ward; claims the right to hold and collect said note, and to reimburse himself for the amount alleged to be due him. Appellant also presented his final account' as guardian. His receipts without said note, amounted to $252.30; disbursements to $484.02 1-2. The court allowed said account and gave said appellant commissions to the amount of $102.23 ; directed appellant to deliver said note to appellee; declared said appellant’s powers and duties as guardian to be at an end; and ordered said petitioner to pay said Hunter $231.721-2, the balance due him.

Hunter excepted, and appealed to this court without giving bond.

A decree requiring H. to-pay over the balance of the proceeds of the note sued on by him when collected, after retaining what was found due him on his final settlement, would have seemed more reasonable, instead of requiring him to deliver up the only security which he had left; and in lieu thereof, to take a decree against Thurmon for the'amount due him, who, for aught that appears, may be wholly insolvent.

The court erred in not making said decree a conditional one, to wit, that Hunter should deliver up the receipt, upon condition that Thurmon paid him the amount found due on final settlement. It was inequitable and unjust to require Hunter to deliver up the only security which he had without being paid or well secured.

…

Citation profile

How this case has been treated — in progress