Malpass v. Graves

• Decision Date: 08 August 1900
• Citation: 36 S.E. 955,111 Ga. 743
• Parties: MALPASS v. GRAVES.
• Court: Georgia Supreme Court

36 S.E. 955

111 Ga. 743

MALPASS v. GRAVES.

Supreme Court of Georgia

August 8, 1900

Syllabus by the Court.

1. When a guardian makes with a debtor of his ward a final settlement, and, on receipt of a given sum paid in pursuance thereof, discharges such debtor from further liability, the ward, if the settlement, though not a just one, was free from fraud or collusion, cannot, on arriving at majority, maintain against the debtor an action for a balance which he ought to have paid to the guardian upon a proper settlement. Before such an action would lie, it would be incumbent on the ward to directly attack and set aside the settlement actually made; and to a proceeding for this purpose the guardian would be an essential party.

2. The case is controlled by the ruling above made, and in the light thereof all of the assignments of error, the decision of which is not controlled by the foregoing note, related to rulings which, even if erroneous, were not harmful to the losing party.

Error from superior court, Hancock county; S. Reese, Judge.

Action by Fairy Malpass against R. A. Graves. Judgment for defendant, and plaintiff brings error. Affirmed.

Roberts & Pottle, Jas. A. Harley, and R. H. Lewis, for plaintiff in error.

W. H Burwell and Bacon, Miller & Brunson, for defendant in error.

COBB J.

Fairy Malpass brought suit against Graves, as administrator of Henry Fraley, deceased, alleging that the defendant's intestate was the executor of the will of her grandfather William Fraley, and as such was liable to her, in different stated sums, for alleged acts of mismanagement as the representative of that estate. The defendant answered denying any liability on the part of his intestate to the plaintiff. The trial resulted in a verdict in favor of the defendant, and the plaintiff's motion for a new trial having been overruled, she excepted.

1. At the trial it appeared that an execution for $10,000 against one Watkins, in favor of William Fraley, came into the hands of Henry Fraley, as executor, and that by a negligent indulgence granted to Watkins a portion of this debt was lost to the estate. The plaintiff was one of the residuary legatees under the will of William Fraley, and the debt of Watkins passed under the residuary clause of the will. Lou A Fraley, as guardian of the plaintiff, gave a receipt to Henry Fraley, as executor of William Fraley, for a given sum of money, in which it was recited that the sum was received "in full of amount due my ward from residuary clause in the will of said deceased," except two items, which are not...