Kelly v. Wilson

As applicable to the question of the right of a debtor to pay and receive *Page 459 acquittance from the present guardian, we find our case of Silverstein v. First National Bank, 231 Ala. 565, 165 So. 827,830, inadvertently overlooked upon original consideration, fully supports the conclusion reached and is in harmony with that of Cocke v. Rucks, supra, from which appropriate quotations were taken, wherein we observed that "When a trustee dies and a successor is duly appointed, he succeeds to the title, rights, and powers conferred by the instrument creating the trust, since they are annexed to the office and not the person of the trustee."

So here, the title to the mortgage given to the deceased guardian, as such, annexed to the office and not to the person of the guardian, and, therefore, such title passed to his successor, the present guardian.

That authority also demonstrates there is no necessity for making either the ward or the administrator of the deceased guardian a party to this proceeding. As applicable here, it is said in the Silverstein Case, supra, that where the "suit is merely to recover property or collect a debt due the estate, and not also to distribute it in the same suit, but to enable the trustee thereafter to distribute it agreeably to the trust, and its recovery then sought in no wise affects the relations between the trustee and beneficiaries, the latter are not necessary parties." To like effect is the still more recent case of Adler v. First National Bank, 233 Ala. 325,171 So. 904.

And as to the administrator of the estate of the deceased guardian, we think it clear enough complainant has no concern with such administration, and should not be made to await its final settlement in order to pay what he owes to the proper party, the persent guardian, who is competent to give an acquittance. Indeed, as we endeavored to show in our original opinion, had the debtor made no such offer to pay, the positive duty nevertheless rested upon the present guardian to collect the balance due on this indebtedness; and, as pointed out in Hughes v. Mitchell, supra, the guardian having notice of the debt is chargeable with the amount thereof if it be lost through negligence.

There being a duty to collect, the greater is the duty, of course, to receive payment when tendered. That is all complainant seeks. The court will ascertain the amount of the balance due on an accounting, and a decree to that effect gives the guardian full protection.

And complainant should not be concerned with or delayed by an administration of the estate of the deceased guardian. Upon settlement of that estate, another duty devolves upon the present guardian to collect therefrom whatever sum said deceased guardian may owe the estate of the ward. But that matter has no relation to the present suit, which is merely to have an accounting to ascertain the balance due and pay the same to the guardian, and receive acquittance therefor.

We stated in the original opinion that the mortgage was properly taken in the name of the guardian as such, and that sections 8168 and 8169, Code, which dealt with the purchase of real estate by the guardian with funds of the ward, with title in the ward, had no application to a mere loan of money by the guardian secured by a mortgage on real estate. Such a transaction is not a purchase of real estate, which is the subject-matter of sections 8168 and 8169, Code, and, therefore, that statute is inapplicable as stated in the original opinion. We find, however, an expression in Howell v. Ward, 230 Ala. 379,161 So. 487, indicating a contrary view. This expression does not appear to have been necessary to a proper decision of the cause, was inadvertently made, and may be classed as dictum, which is here disapproved.

We have considered and discussed the questions presented, and have endeavored to make plain the right of complainant to have ascertained the amount of the indebtedness due, and the duty of the present guardian to give acquittance therefor, when so paid. Further elaboration is unnecessary.

The application for rehearing will be denied.

Application overruled.

All the Justices concur. *Page 460