Beard v. Dean

• Decision Date: 30 September 1879
• Citation: 64 Ga. 259
• Parties: Beard. v. Dean.
• Court: Georgia Supreme Court

64 Ga. 259

Beard. v. Dean.

Supreme Court of the State of Georgia

(September Term, 1879.)

Guardian and ward. Before Judge Pottle. Madison Superior Court. March Term, 1879.

Ross Beard, a female minor nearly sixteen years of age, applied to the court of ordinary to be allowed to select her guardian, naming Skinner. Ross' mother, her father being dead, caveated the application, and asked that she be appointed. It was so ordered and Ross appealed to the superior court. Upon the trial there the evidence presented, in brief, the following facts:

Ross' father died before she was born. Her mother raised her until she was about seven years of age, when she went to her uncle Dean's to sow some peas, and had there *remained since; her mother had married again and her (Ross') association with her step-father's children by a former marriage was not pleasant; she was happy where she was, had lived with her uncle for seven or eight years pleasantly, was treated kindly and as one of his own children, and preferred so to remain to returning to the care of her mother; Skinner would not interfere in this condition of affairs, whilst if her mother was appointed she would be compelled to return to her step-father's; she owned a small tract of land of the value of about $300.00.

There was testimony to show that either Skinner or her mother would make a proper and competent guardian.

The issue thus made was submitted to the court without the intervention of a jury. The mother prevailed, and Ross excepted.

G. Nash; J. B. Estes; W. G. Johnson, for plaintiff in error.

J. M. Mathews; Samuel Lumpkin, for defendant.

BLECKLEY, Justice.

There is certainly nothing in the record to warrant this court in the slightest interference with the discretion exercised by the court below in appointing the mother rather than the person selected by the ward if that court had, by law, any discretion in the matter. The guardianship in controversy was not of the property alone, but of the person also. Indeed, it was the latter element that gave point to the whole proceeding. There are three sections of the Code which we find it necessary to compare and interpret. Section 1803 says that the father, if alive, is the natural guardian; if dead, the mother is the natural guardian; a guardian's bond has to be filed, and accepted by the ordinary, before the natural guardian can receive property, and if this is not done, the ordinary may appoint anotherguardian to receive the property. Section 1806 empowers *the ordinary to appoint for a minor "having no guardian, " a guardian of person or property, or of either, and adds that if the ward is above the age of fourteen years before a guardian is appointed, the ward shall have the privilege of selecting, and if the selection be judicious, the ordinary shall appoint the person selected. Section 1808 is in these words: "In the appointment of guardians, the widowed mother shall have the preference upon complying with the law. Upon marriage again the letters are revoked, though her husband shall be responsible to the ward as guardian, if no other guardian be appointed. Among collaterals applying for the guardianship, the nearest of kin by blood, if otherwise unobjectionable, shall be preferred—males being preferred to females. The ordinary, however, in every case may exercise his discretion according to the circumstances, and, if necessary, grant the letters to a stranger in blood." To harmonize all the provisions of these three sections, they must be read attentively. Natural guardianship,...