Griffin v. Collins

• Decision Date: 28 January 1905
• Parties: GRIFFIN et al. v. COLLINS.
• Court: Georgia Supreme Court

49 S.E. 827

122 Ga. 102

GRIFFIN et al. v. COLLINS.

Supreme Court of Georgia

January 28, 1905

Syllabus by the Court.

1. There is no provision of law in this state for the appointment of a guardian for a person of full age solely on the ground of blindness and limited education; but where one on his own motion, is appointed guardian of such a person and as a condition precedent to his appointment gives bond with security for the faithful administration of the ward's estate, he and the sureties on his bond are estopped, in a suit on the bond, to deny the validity of his appointment as guardian.

2. An order of the ordinary, granting the prayer of a petition filed by one for whom a guardian has been appointed, asking that the guardianship be revoked and the estate turned over to an attorney in fact for the ward, the operation of the order being made conditional upon the guardian's making a full settlement with the ward or her attorney in fact, is not a bar to an action by the administrator of the ward on the guardian's bond.

3. Under Civ. Code 1895, § 2567, publication for four weeks of notice of the application of a guardian for letters of dismission is necessary before the guardian can obtain a valid discharge. Consequently, where a discharge was granted without compliance with this requirement of the law, it was not a bar to a suit on the guardian's bond.

4. A receipt by a ward, acquitting the guardian in full of all claims against him, is not valid if signed before the termination of the guardianship. This is so even though the ward be at the time of sound mind.

5. The period of limitation within which suit may be brought on a guardian's bond is 20 years. This is not affected by section 2565 of the Civil Code of 1895, the effect of which is to provide that in the absence of a full exhibit of the guardian's accounts, and full knowledge by the ward of his rights, receipts in final settlement of the guardian's account will be prima facie binding upon the ward only after the lapse of four years.

6. A receipt signed by a ward, acquitting her guardian of all claims against him, does not "increase the risk" of the sureties on the guardian's bond, so as to release them from liability.

7. A suit against a guardian and the securities on his bond seeking to recover on the bond, is an action at law; and where questions of law and fact in such a case are submitted to an auditor, and exceptions of fact are filed to the auditor's report, such exceptions should be submitted to a jury for determination.

Error from Superior Court, Greene County; H. G. Lewis, Judge.

Action by Pope Collins, administrator, against J. M. Griffin and others. From the judgment, both parties bring error. Reversed on both bills of exceptions.

CANDLER J.

On October 4, 1880, James M. Griffin was appointed guardian of the estate of Harriet A. Lane, he having filed a petition to the court of ordinary of Greene county in which he alleged that Harriet A.

Lane "is blind, and of hardly any education because of said blindness; of no experience in business; and consequently, though of sound mind and of the age of thirty-nine years, utterly incapable of managing her estate." The petition concluded with a prayer that he be appointed guardian of her estate. The order of the ordinary was as follows: "Whereas, application has been made to this court by James M. Griffin, stating that Harriet A. Lane, of said county, has a considerable estate, and that owing to her blindness and limited education she is incompetent to manage her estate, and that she has no guardian; and whereas, it appears that notice of application for the issuing of a commission has been given in terms of law to inquire into the inability of the said Harriet A. Lane to manage her own business for the reasons given in the petition of said James M. Griffin, and no objection having been made: Ordered, that a commission issue in said case." The jury appointed by the ordinary found that "from blindness and limited education" she was not competent to transact her business, and recommended the appointment of a guardian. In accordance with this recommendation, it was duly ordered that Griffin be appointed guardian of the estate of Harriet A. Lane upon his giving bond in the sum of $14,000. On October 28, 1880, such a bond was given, signed by Griffin as principal, and Joseph McWhorter and J. O. Boswell as securities. The condition of the bond was that Griffin should "well and truly maintain and clothe said Harriet A. Lane according to her circumstances, and *** take good and lawful care of her person and property according to the laws of this state, and *** annually make a just and true return of all his actings and doings herein unto the said ordinary, and pay over all assets that [might] remain in his hands when said guardianship [[should] legally terminate." Griffin continued as guardian until October 30, 1888, when Harriet A. Lane filed in the court of ordinary of Greene county a petition reciting that he had put her on notice that he must surrender his trust at once; "and inasmuch as it is extremely difficult to get a person suitable to take charge of the property and give the bond required by law, and the probability of a frequent change in these uncertain times would make heavy expense on the corpus of the property, and feeling that she can through a competent agent manage it satisfactorily by having it invested in state bonds as soon as possible, she respectfully prays that the said guardianship be revoked, and that the property be turned over to her or her authorized agent." Attached to this petition was the written consent and recommendation of Griffin as guardian, and that of Mary L. Collins, the sister and nearest of kin to Harriet A. Lane. The ordinary ordered that the prayer of the petition be granted upon Griffin making a full settlement with the attorney in fact of Harriet A. Lane. On January 7, 1889, the ordinary passed an order reciting that the final return of James M. Griffin, guardian of Harriet A. Lane, had remained of file the time required by law, and directing that it be allowed and admitted to record. Thereupon Griffin filed a petition setting out that his guardianship had terminated, and that he had made a full settlement with his ward, and praying for a final order discharging himself and the securities on his bond; and it was accordingly "ordered by the court that James M. Griffin be *** discharged from said guardianship, and that Joseph O. Boswell and Joe McWhorter, his securities, *** be released from all further liabilities on said bond as such securities." The record contains certified copies of the various returns of Griffin as guardian, and it appears that on November 5, 1888, B. F. Collins, as agent for Harriet A. Lane, and Harriet A. Lane herself, signed the following receipt: "$6,445.88. Received of Jas. M. Griffin, my guardian, six thousand, four [hundred] and forty-five & 88/100 dollars, in full of all claims on him to August 5th, 1888. This is a settlement in full. November 5th, 1888." This paper was witnessed by John H. Bowles, a notary public.

Harriet A. Lane died in June, 1901, and Pope Collins, her nephew, was appointed administrator of her estate. The present suit was brought by him to the September term, 1902, of Greene superior court, against Griffin as principal, and Boswell and the executors of McWhorter as securities, on the bond heretofore mentioned. The petition alleged various acts of fraud and mismanagement on the part of Griffin as guardian and claimed that the settlement between him and his ward by which she undertook to release him from all further liability, was void for want of capacity in her to make such a settlement. It alleged that in procuring this settlement Griffin grossly imposed upon his ward, who reposed the utmost confidence in him, and was, by reason of her bodily and mental affliction, unable to ascertain and discover the fraud that was being practiced upon her. The petitioner waived discovery, and prayed (1) that Griffin be required fully to exhibit his accounts as guardian, (2) that he fully exhibit the items of the pretended settlement, and (3) that the plaintiff have judgment on the bond in such sums as are shown to be due the estate of his decedent. The defendants filed separate answers, and demurred generally and specially. The petition was amended to meet the demurrers, and it was alleged, among other things, that the judgments of discharge granted the defendants by the ordinary were void for want of citation, service, or notice to any one preceding their rendition, and because Harriet A. Lane did not appear before the ordinary, the proceeding being entirely ex parte, and therefore null and void. Various items were set out, wherein it was claimed that Griffin, as guardian, had made erroneous and fraudulent returns, creating an indebtedness from him to his ward in sums stated. The points raised by the demurrers and the averments of the answers filed by the defendants will not be set out at this point, as they will clearly appear from the ensuing discussion of the legal questions involved in the decision of the case. The case was referred to an auditor, the substance of whose report is contained in the closing paragraph thereof, as follows: "Wherefore, in conclusion, I find the plaintiff has established by proof all the allegations in his declaration, the amendments thereto, and his replication to defendants' answers necessary to the recovery hereinbefore indicated; and that therefore he have judgment against all the defendants in the principal sum...