[Bell v. Bell.] When, however, the testimony does not relate directly to, nor shed any direct light on some transaction with, or statement by the deceased adversary, then the prohibition does not apply. Hence, such witness may testify to pertinent collateral facts and transactions, not falling directly within the expressly prohibited class, although the effect may be to materially change the aspect of the case, and impair the probative force of the testimony.-Wood v. Brewer, 73 Ala. 259, falls within this class. In this case, the plaintiff, who sues as administrator, having proved by a witness a conversation respecting the mule in controversy between plaintiff's intestate and Edwards from whom defendant derived title, the defendant introduced Edwards, who was allowed to testify that no such conversation ever occurred with the deceased. Under the rules declared above, the court erred in admitting this evidence. There is nothing in the other errors assigned. Reversed and remanded. Bell v. Bell. Contest on Claim of Homestead by Widow and Minor Children. 1. Homestead; right of widow and children; disposition of property by will.--The right of the widow and minor children to the exemption of the homestead under § 2543, Code of 1886, providing for the exemption from administration of the homestead of any resident of the State, is not barred by the attempted disposition of the property by the decedent in his will. APPEAL from Cleburne Probate Court. AIKEN & BURTON, for appellant. KELLY & SMITH, contra. SOMERVILLE, J.-In Hubbard v. Russell, 73 Ala. 578, it was decided that where a decedent leaves a will by which he disposes of his entire property, providing for the widow by making her a devisee under the terms of the instrument, [Thompson, Guardian, v. Hartline.] she could claim her exemptions of personal property provided for by statute without being first required to dissent from the will. In that case, the testator had directed the property, real and personal, to be sold, giving the widow, during her life or widowhood, one half interest in the net proceeds, to be retained in trust by the executor for her use, with remainder to the testator's lawful heirs. The same. principle, in our opinion, applies to the claim of exemption by the widow to the homestead owned and occupied by the decedent at the time of his death. The homestead declared to be exempt is not that of one dying intestate, but the homestead of "any resident" of this State-thus including deceIdents both testate and intestate. It is not only exempted from the payment of debts contracted since the 23d of April, 1873, but is declared expressly to be "exempted from administration." The effect of the statute is to take the homestead out of the operation of the will, during the life of the widow and minority of the child or children, for the purpose and to the extent declared in the statute. Code, 1886, SS 2543, 2507; Jarrell v. Payne, 75 Ala. 577; Coffee v. Joseph, 74 Ala. 271. The attempted disposition of the property, therefore, by the testator in his will can not bar the widow and minor children of the statutory right of exemption. There is no room for the operation of an equitable estoppel in such a case, at least in the Probate or Circuit Court, where issues arising out of the contest relating to homestead rights are authorized to be tried. Whether a testator could lawfully provide a legacy, or devise, which should vest only on condition of a waiver of all exemption rights, in any mode, is a question not now before us for decision. The judgment of the Probate Court, in view of these principles, is free from error, and must be affirmed. Thompson, Guardian, v. Hartline. Final Settlement of Guardian's Accounts. 1. Order removing guardian at special term.--An order removing a guardian, made at a special term, without continuance from a regular [Thompson, Guardian, v. Hartline.] term, is not void; and not having been appealed from, nor objected to, on that ground, when the guardian appeared and filed his accounts and vouchers for settlement, its validity can not be assailed on appeal from the decree then rendered against him. 2. Specific objection as waiver of others. When a guardian appears, in answer to a citation requiring him to file his accounts and vouchers for final settlement, and makes a specific objection to the proceedings, this is a waiver of all other grounds of objection. 3. Joinder of orders.--An order removing a guardian, and an order requiring him to file his accounts for final settlement, may be made at one and the same time, and may be embraced in one entry. 4. Proof of value of services; what witness may state.--As proving the value of services rendered by a minor for a guardian, in whose house she lived, a witness can not be allowed to testify that her services "were worth as much as her board." APPEAL from Cherokee Probate Court. J. L. BURNETT, for appellant. MATTHEWS & DANIEL, contra. STONE, C. J.-One of the objections urged in this case is, that the order removing Thompson from the guardianship, being made out of term time, and at a time to which there had been no adjournment from a regular term, is invalid. Boynton v. Nelson, 46 Ala. 501, and Childress v. Childress, 49 Ala. 237, are relied on in support of this view. The order in this case was not appealed from, and hence the question comes up collaterally in the present proceeding. To avail anything, presented as it is, it must be on the ground that the order was void, that Thompson is still guardian, and hence he could not be brought to a settlement. On the day on which the citation required Thompson to appear and file his account-current and vouchers for a settlement, he appeared by himself and counsel. He objected to being brought to a settlement, but not on the ground that he had not been legally removed from the guardianship. exact objection is in the following language: His "Comes the movent, F. M. Thompson, and moves to strike the citation issued by the court 20th July, 1886, and demurs to the same, because court can not, on an order removing guardian, also order guardian to file acct. (account) and vouchers for final settlement." The motion and demurrer being overruled, the guardian thereupon filed his account current, on which the settlement was had. Objecting on one ground-the joinder of two [Thompson, Guardian, v. Hartline.] orders in one-was a waiver of all others.-Floyd v. State, 82 Ala. 16; Garrett v. Trabue, Ib. 227; Co. Comm'rs v. Woodstock Iron Co. Ib. 151; Jaques v. Horton, 76 Ala. 238; 3 Brick. Dig. 444, § 574. There was no error in making both orders at one and the same time, nor in embracing them in one and the same entry. The motion and demurrer as made were properly overruled. All In one respect, however, the Probate Court erred. The witnesses, J. A. Leath and Mrs. Leath, were permitted, against objection, to testify that the services rendered by the ward to the guardian "were worth as much as her board. This was not the proper mode of arriving at the facts, even if the witnesses had complete knowledge of all the services she rendered. This they did not profess to have. It was permissible to prove what services they had seen her render, and for what length of time, according to their best recollection; and the value of her services by the day, week, or month, as the case may be. And they could also give their judgment of the customary price of board in the neighborhood, if they had sufficient knowledge to speak of it. else, however, it was the duty of the court to determine. And in arriving at his conclusions, he should ascertain, as accurately as the testimony enables him to do, in favor of the guardian, what, according to the custom of the country, was a reasonable price for such board as he furnished, including her washing to the extent it was furnished to her, if at all; and of all other services necessary or useful that were done for her. Against this comes up the counter claim of the ward for services rendered. The burden of proving this rests on the ward, precisely as if she was suing to recover for such services. She is entitled to a proper allowance for all services she makes reasonable proof she has rendered, at customary rates, and she is entitled to no more. If at any time, she was absent from service to the guardian for any reason, or for no reason, or if there is failure of proof of service for any particular time or times, she should have no allowance for such time or times.-Minniece v. Jeter, 65 Ala. 222; Rapalje Law of Witnesses, § 287; Hathaway v. Brown, 22 Min. 214; Atl. & Gr. Wes. R. R. Co. v. Campbell, 64 Amer. Dec. 607; Harwood v. Pearson, 60 Ala. 410. There is nothing in the other questions. Reversed and remanded, 84 68 100 186 [Evans v. Daughtry et al.] Evans v. Daughtry et al. Petition by Surety on Guardian's Bond for Supersedeas of 1. Signing bond by surety, on condition.-A surety on a guardian's bond may sign it conditionally, and leave it with his principal, to be delivered, and to become valid and operative, only if and when other persons named have also signed it as sureties; and if it is delivered by the principal without the additional signatures, the surety so signing is not bound by it, unless he has estopped himself from denying his liability, by allowing the guardian to act in that capacity under the bond, having knowledge of the abuse of confidence, or notice of facts which are the equivalent of knowledge. APPEAL from Bullock Probate Court. W. F. FOSTER, for appellant. NORMAN & SON, contra. STONE, C. J.-There is no conflict in the testimony in this case. It fully proves that Evans signed the bond conditionally, and left it with Raney, his principal, with the understanding and instruction, that he was not to become a surety on the bond, unless Pearson and Scott became cosureties with him. In other words, it was left with him as an escrow. Neither Pearson nor Scott signed the bond, and it results, if there is nothing else in the transaction, that Evans is not bound as a surety on the bond.-Bibb v. Reid, 3 Ala. 88; Guild v. Thomas, 54 Ala. 414; Marks v. First National Bank, 79 Ala. 550; Smith v. Kirkland, 81 Ala. 345. The court below found, as fact, that Evans did sign on the conditions claimed. 2. It was contended in the Probate Court, and the court so ruled, that Evans, by permitting Raney to obtain the appointment of guardian on said bond, and to act under it, had estopped himself to deny his liability as surety.—Wright v. Lang, 66 Ala. 389, is relied on, as supporting this view. The principle is certainly sound, if the facts justify its application to this case. To make this principle applicable, |