Brown v. Wright

• Decision Date: 30 June 1869
• Parties: KILLIS BROWN, guardian, plaintiff in error. v. WILLIAM WRIGHT and wife et al., defendants in error.
• Court: Georgia Supreme Court

39 Ga. 96

KILLIS BROWN, guardian, plaintiff in error. v. WILLIAM WRIGHT and wife et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, June Term, 1869.)

Liability of guardians. Confederate money. Before Judge Pope. DeKalb Superior Court. October Term, 1869.

Brown was guardian of two Misses Gentry, who married William Wright and his son, William A. Wright, and was sued by them for a settlement. The dispute was as to the amount due them.

The plaintiffs showed the record of his actings and doings as administrator of Mason Gentry, the father of said ladies, from the 1st of June, 1857, till the 5th of June, 1863, at which last date, as such administrator, he turned over to himself, as guardian of Mason Gentry's minors, $5,966 53, and read the record of his actings and doings as such guardian. *As guardian, he had charged them board, and had allowed them nothing for work and labor done for him. It was shown that these ladies and a brother were the only heirs of Mason Gentry, that the boy died, a minor, in 1862. The Court of Ordinary had rendered a judgment in favor of plaintiffs against Brown for $5,170 98, as balance due upon settlement, allowing him to deliver to the plaintiffs a note on Meredith Brown for $1,940 00 as part of the said $5,170 98, and that they recover of Killis Brown, guardian, a balance of $2,290 45, less $50 45 for commissions, and $17 75 for taxes, and $20 20 for costs, and ordering that fi. fa. issue for $2,224 25 and costs. This judgment was read in evidence.

Evidence was introduced to show that when said note on Meredith Brown was taken, Meredith Brown was insolvent, that the wards lived with and worked for Killis Brown, performing domestic labor and occasionally light work in the farm, such as dropping corn, etc., and that Killis Brown had said he would not charge them board.

The plaintiffs having closed, the defendant testified, that, in 1860, he loaned Meredith Brown $1,947 00 of the funds of said Gentry minors, and took said note therefor, with a mortgage on five slaves, worth $3,000 00, to secure its payment; said he had no recollection of saying he would charge no board; that he loaned $500 00 of Confederate currency, which belonged to said minors, to Benjamin Thurman, and that Thurman paid it and $50 00 interest in the same kind of currency, in the Spring of 1865, and he produced a package, saying it was the identical currency so paid him and became worthless in his hands; that Judge Ezzard, in 1862 or 1863, collected for him $1,400 00 or $1,500 00 from Almond upon a claim for money loaned Almond, and due said minors, and that he loaned it out to J. A. Reeves and T. P. Flemming as security, and that that amount was lost.

He admitted that he had taken no legal steps to force Meredith Brown to pay said note. He and other witnesses, including Meredith Brown, testified to the solvency of Meredith Brown in 1860, and Meredith Brown also testified that he still had property, indeed, about all he had at that time, except the *slaves, who were emancipated while they were his, and that he had little that he did not have then. The defendants read in evidence said note and mortgage, and the receipt for said taxes, and closed. His counsel requested the Court to charge the jury that a guardian is bound to pay interest on the funds of his wards, in his hands, unless he proves that he could not loan them, and he did loan the money, and take a mortgage on slaves of sufficient value to secure the payment of the debt, and the debt is lost by reason of the emancipation of the slaves, the guardian is not liable.

The Court refused so to charge, but, on the contrary, charged the jury as follows: If a guardian loaned the money of his ward, he did it at his own risk, and, notwithstanding, he took security, good at the time, if the security afterwards became insolvent and the money was lost, the loss must fall upon the guardian; that the only way in which a guardian could be protected in parting with the funds of his ward, is by investing the use in stocks, bonds, or other securities issued by the State, or in other property in pursuance of an order of Court; that, in computing interest, they would compute it at seven per centum per annum for the first seven years, and after that, at six per centum per annum, and compound it every year, unless the guardian had charged himself with interest in his returns, and then he is entitled to ten per cent, on the amount of interest.

The jury found a verdict for $4,800 00 and costs against the defendant. His counsel moved for a new trial, upon the ground that the Court erred in each of the two divisions of said charge, and in the third, under the circumstances of this cause; in refusing to charge as requested; in ruling out the note on Reeves and Flemming, dated in August, 1863, because it was not stamped, and because the verdict is contrary to the evidence and the charge of the Court. The bill of exceptions does not state that the note on Reeves and Flemming was offered as evidence.

The Court refused a new trial, and this is assigned as errorupon each of said grounds.

William Ezzard, for plaintiff in error, said guardians are bound to ordinary diligence, Code, sec. 2300; Camp-bell v. Miller, 38 Ga. R., 304. As to computing interest, see Acts of 1862-3, 30; Fall v. Simmons, 6 Ga. R., 265; Acts 1865-6, 86.

Hill & Candler, for defendants in error. As to guardian's duties and liabilities, cited Code, sees. 1813-15-19-22-34-28, 2; Story's Eq. Juris., section 1273, 4; 2 Hill on Trustees, s. p., 378; 2 Kent's Com., 230; 4 John's Ch. R., 281; Cobb's Dig., 328, 333, 337. As to...