Mitchell v. Mitchell

• Decision Date: 15 November 1946
• Docket Number: 15647,15648.
• Citation: 40 S.E.2d 738,201 Ga. 621
• Parties: MITCHELL v. MITCHELL (two cases).
• Court: Georgia Supreme Court

40 S.E.2d 738

201 Ga. 621

MITCHELL v. MITCHELL (two cases).

Nos. 15647, 15648.

Supreme Court of Georgia

November 15, 1946

Syllabus by the Court.

1. The allegations of counts one and three of the petition, seeking to recover in a court of equity from the defendant wife and guardian certain amounts which the petitioner contends were illegally spent by her for her own support, and to recover certain amounts charged as commissions on receipts and disbursements of guardianship funds, were subject to the ground of demurrer that the court of ordinary, in which litigation concerning the guardianship was pending had original jurisdiction, and being competent to afford relief equal to that obtainable in equity, should retain jurisdiction.

2. The allegations of count two of the petition, seeking to recover from the wife described realty which had been conveyed to her individually, but which the petitioner contends should have been taken in her name as guardian for him--having been purchased with money earned by him and not being part of the guardianship funds--were sufficient to show a constructive trust and were not subject to demurrer for any reason assigned.

3. The Code, § 37-105, properly construed, does not mean that a court of equity will reach out and embrace matters entirely disconnected from the subject matter over which it has assumed jurisdiction, and consequently, where an administration of a special guardianship pending in the court of ordinary bears no relation to the subject matter of realty sought to be recovered in a suit in equity, the pending guardianship proceeding will not be wrenched from the court of ordinary.

Owen J Mitchell filed in Cobb superior court, against Mrs. Owen J Mitchell, his wife, a petition in three counts, each of which alleged substantially the following: In pursuance of the provisions in the Code, § 49-801 et seq., providing for guardians of incompetent World War Veterans, the defendant was appointed guardian of the person and property of the petitioner by order of the court of ordinary at the August term, 1928. She continued such guardianship until May 17, 1946, when the petitioner was adjudged competent.

Court one of the petition, which sought to recover certain amounts that the petitioner contended were illegally spent by the defendant for her own support while serving as his guardian, contained allegations to the effect: During the period of guardianship the defendant made fraudulent annual returns to the ordinary, and made illegal charges against the petitioner's estate in such returns. The returns are not supported by proper vouchers, and the books and accounts, if any, of her guardianship are within the custody of the defendant. By making such improper charges the defendant wasted and mismanaged the petitioner's estate and perpetrated a fraud upon him and upon the Court of ordinary. He set forth particular items claimed to be false, and attached exhibits to the petition setting forth such items. The prayers were for the appointment of an auditor, an accounting, and general relief. The petitioner amended count one by setting forth the following: After the original petition was filed the defendant procured from the ordinary a dismissal as guardian, but this was accomplished without submitting any legal vouchers. The ordinary failed to examine as to any legal vouchers to determine whether the trust had been faithfully performed, contrary to the duty imposed upon him by law. The petitioner has no adequate remedy at law, for the reason that the superior court on appeal from a citation in the ordinary's court would have no equitable powers. The accounts are complicated and difficult, and discovery is necessary because the defendant's conscience must be examined to establish the true accounts. The petitioner cannot obtain his whole rights immediately, and he will be forced to engage in a multiplicity of suits. Equity will more quickly raise and act upon a presumption of fraud. The petitioner's rights can be more adequately established, secured, and preserved by the intervention of equity and full justice be done between the parties.

Count two sought to recover described real estate which had been conveyed to the defendant individually, but which the petitioner alleged had been purchased with money earned by him, and that title to the property should have been taken in the name of the defendant as guardian instead of individually, and he also sought to compel the defendant to convey the property to him and declare a trust in his favor.

Count three sought to recover certain commissions charged on receipts and disbursements during the defendant's period of guardianship.

The defendant filed a demurrer to the petion as amended, on general and special grounds. The petitioner excepted in a direct bill of exceptions to an order sustaining specified grounds of demurrer and dismissing counts one and three of the petition. The defendant excepted in a crossbill of exceptions to the part of the same order which overruled stated grounds of demurrer to count two of the petition.

Luther C. Hames, Jr., Dorsey & Hames and Fred Morris, all of Marietta, for plaintiff in error.

Willingham, Cheney, Hicks & Edwards, of Marietta, for defendant in error.

ATKINSON, Justice (after stating the foregoing facts).

1. The first question for decision is whether the trial court erred in sustaining a demurrer interposed by the defendant, and in dismissing counts one and three, on the ground that the court of ordinary had original jurisdiction of the matter set forth therein, and such court, being competent to give as much relief as the superior court, should retain jurisdiction of the matter.

'Equity will not interfere with the regular administration of estates, except upon the application of the representative, either, first for construction and direction, second, for marshaling the assets; or upon application of any person interested in the estate where there is danger of loss or other injury to his interests.' Code, § 37-403.

The guardianship in question of the person and property of a world war veteran was under the jurisdiction of the ordinary, as to whose authority the Code provides as follows: 'A petition for the appointment of a guardian may be filed in the court of ordinary having jurisdiction,' etc. Code, § 49-804. 'Before making an appointment under the provisions of this Chapter, the court shall be satisfied that the guardian whose appointent is sought is a fit and proper person to be appointed. Upon the appointment being made the guardian shall execute and file a bond to be approved by the court,' etc. Code, § 49-807. 'Every guardian, who shall receive on account of his ward any money from the Bureau, shall file with the court annually, in the same manner as provided under the general law for guardians, a full, true and accurate account, on oath, of all moneys so received by him, of all disbursements thereof, and showing the balance thereof in his hands at the date of such account, and how invested,' etc. Code (Ann.Supp.) § 49-811. 'When any incompetent ward, not a minor, shall be declared competent by said Bureau and the court, the guardian shall upon making a satisfactory accounting be discharge upon a petition filed for that purpose.' § 49-814. 'Except where inconsistent with this Chapter, the general guardianship laws of this State and the laws establishing the practice in such matters, including rights of appeal, shall be applicable to such wards and their estates.' § 49-818. The general law provides: 'If the ordinary shall know, or shall be informed, that any guardian wastes or in any manner mismanages the property, * * * or refuses to make returns as required by law, or for any cause is unfit for the trust, the ordinary shall cite such guardian to answer to such charge at some regular term of the court, when, upon investigation of his action, the ordinary may, in his discretion, revoke his letters or pass such other order as in his judgment is expedient under the circumstances of each case.' Code, § 49-232.

The allegations contained in counts one and three of the petition show that the court of ordinary had original jurisdiction of all the matters dealt with therein pertaining to the guardianship, that the order appointing the defendant as guardian required her to give bond in the sum of $7000, and that she made annual returns to the court of ordinary, the last of which showed that the petitioner was entitled to receive $2645.24 in final settlement. The judgment of the court of ordinary restoring the petitioner to competency ordered that the defendant deliver to the petitioner all his property, money and effects. The petition does not allege that the defendant is insolvent or that she failed to give the bond required of her.

In Darby v. Green, 174 Ga. 146(4), 162 S.E. 493, it was said: 'Any person interested in the estate may seek the...