Pettigrew v. Williams
| Decision Date | 16 July 1941 |
| Docket Number | No. 28850.,28850. |
| Citation | 16 S.E.2d 120 |
| Parties | PETTIGREW. v. WILLIAMS. |
| Court | Georgia Court of Appeals |
Rehearing Denied July 30, 1941.
Syllabus by the Court.
1. The bill of exceptions, in which error is assigned upon the order of the court disallowing an amendment to the petition and upon the direction of a verdict and upon the order of court overruling a motion for new trial, is not subject to dismissal for a failure to comply with the requirements of Code, § 6-804.
2. By virtue of Code, § 49-301, a ward, after reaching majority, may apply to the ordinary for an order requiring his guardian to appear and submit to a settlement of the accounts of the ward's estate.
3. The approval by the ordinary of the annual returns of a guardian is prima facie evidence only of the correctness and legality thereof, and a ward may, in a proper proceeding, after reaching majority, attack such returns.
4. An action against a guardian, growing out of his failure to settle with his ward, may be instituted by the ward, pursuant to Code, § 3-709, within ten years after the accrual of the right thereto.
5. An amendment to a petition filed by a ward against her mother, as guardian, for a settlement and accounting, in which the ward attacks the legality and correctness of the returns of the guardian, specifying in such amendment with definiteness the grounds on which the ward questions the legality and correctness of the returns and the particular items of expenditures and vouchers attacked, was proper, and was not subject to the grounds of general and special demurrer urged thereto by the guardian.
Error from Superior Court, Thomas County; W. E. Thomas, Judge.
Petition by Mrs. Robert L. Pettigrew against Mrs. J. R. Williams for settlement of respondent's account as guardian for petitioner. Verdict and judgment for respondent, and petitioner brings error.
Reversed.
On May 7, 1923, Mrs. Annie L. Bell, now Williams, was appointed the guardian of the person and property of her seven minor children, one of whom is Mrs. Robert L. Pettigrew, formerly Margaret Ethel Bell. Mrs. Pettigrew was born March 2, 1911, and reached her majority on March 2, 1932. On April 2, 1924, when Mrs. Pettigrew was 13 years of age the guardian had on hand as the property of her children and wards the sum of $13,014.57. The guardian has never accounted to nor settled with Mrs. Pettigrew for her part of this money. On July 2, 1940 [8 years and 3 months after she had attained her majority], Mrs. Pettigrew filed in the court of ordinary of Thomas County a petition, in which the foregoing facts were alleged, and in which she prayed for an order requiring the guardian to appear and submit to a settlement with petitioner of her account as such guardian and for the issuance and service of citation. Thereupon citation issued requiring Mrs. Annie L. Williams to be at the August term 1940 of Thomas County Court of Ordinary to render an accounting and settlement of her accounts as guardian for the petitioner. Service of the petition and citation was acknowledged by Mrs. Williams.
On September 3, 1940, the guardian, for answer to the petition and citation, alleged that she had had exhibited to her on that date the three annual returns of herself as such guardian, which had been filed in such court of ordinary, "reference to whichis made" which returns are self-explanatory as to the handling of the estate, and which are signed by respondent, "and who acknowledges receipt of the money and disbursements of the same in accordance with said returns, " that "respondent adopts said returns as her answer to this rule and makes this answer to each of the petitions filed in said case"; and that "respondent shows that by her said returns she has on hand $313.52, which is subject to further administration and to the direction of this court." Thereupon Mrs. Pettigrew offered an amendment to the petition for settlement and accounting in which she alleged that the respondent as such guardian, on or about August 15, 1923, received $13,000 or more belonging to her wards in equal shares, and petitioner is entitled to a settlement from the guardian for one seventh of this sum with interest from that date. She further alleged therein that the guardian has filed three purported annual returns relative to the estate of her wards, in which it is represented that all of the money received for them was spent upon the wards, except about $300, and that each of said returns was void and of no effect. Mrs. Pettigrew alleged therein that the return for the period beginning May 7, 1923 and ending June 30, 1924, is void, because (1) the money therein claimed to have been spent for maintenance and education of petitioner was not in fact so spent; (2) the return is not accompanied by any valid vouchers showing expenditures made for the maintenance and support of petitioner; (3) the alleged vouchers accompanying this return, which appear to be made as receipts to the guardian and signed by the guardian, constitute no evidence to show such expenditures; (4) the return was not filed until June 1926, which was two years after the period alleged to be shown therein, at which time it appears that all vouchers for maintenance and education of the petitioner was made by the guardian as receipts to herself, without any original account or record of such expenditures to authorize or support same, (5) it appears that the estate and accounts of petitioner were mingled with the estates and accounts of the other wards, and that no separate account was ever kept for the petitioner, (6) the return purports to show that a part of the corpus of the estate of the petitioner was spent for her maintenance and education without previous authority from the ordinary for any such expenditures, which is contrary to the law of this State; (7) there was never any order passed by the ordinary approving the return and admitting it to record, it being recorded in annual return book JJ, pp. 154 to 157, with a typewritten order thereon which has never been signed or approved by the ordinary; and (8) the return was false and fraudulent and constitutes a fraud against the ordinary and against petitioner.
The returns for the periods from July 1, 1924 to December 31, 1925 and from January 1, 1926 to December 30, 1926, were atacked in such proffered amendment as being void upon similar grounds.
The petitioner further attacked the record of the return for the period from May 7, 1923 to June 30, 1924, as appearing in such annual return book, as not being a true and correct record of the original return, because the record shows an order approving the return and admitting it to record, when in fact the original of such return and original papers of file in the matter do not show any such order and do not show that any order was ever passed by the ordinary for the approval of the return. It is alleged that the record of such returns is typewritten, the order on the record is typewritten, and the name of Hon. Wm. M. Jones, ordinary, on the record, is typewritten, and there is no actual signature of the ordinary on the original return, nor on any order in the original file for the approval of the return, nor on the record thereof. It is further alleged that such erroneous record of the return and order should be disapproved as erroneous so that no exemplified copy of such record may ever be used "at any time anywhere, " and that any such exemplified copy would show the order with the signature of the ordinary thereof and would not be true and correct. On the same grounds and for the same reasons petitioner further attacked the return covering the period from July 1, 1924 to December 31, 1925. The ordinary refused to allow this amendment.
The petitioner, on September 5, 1940, appealed from this judgment to the Superior Court of Thomas County. The case came on for trial before a jury in that court on October 22, 1940, and petitioner offered the foregoing amendment which had been tendered by her in the ordinary's court and disallowed therein, and at the same time offered another amendment to the original petition or application.
In this latter amendment petitioner alleged that in the return from May 7, 1923 to June 30, 1924, the items shown as voucher No. 1 and voucher No. 8, charged against petitioner's estate, are erroneous, fraudulent and void, and are improperly charged and admitted to record against her, because (a) the sums therein represented were not spent for petitioner's board, laundry, clothing, schooling, education, maintenance and support, (b) the alleged vouchers accompanying the return appear to be nothing more than receipts made by the guardian to herself, without any original bills or invoices for any expenditures, and such receipts constitute no evidence as vouchers and no evidence to show any proper and legal charge against the estate of petitioner, (c) as to such items the return is not accompanied by any valid voucher showing any legitimate expenditure of such amounts, or any part thereof, except out of the estate of petitioner, (d) the petitioner lived at home with her mother, and there were no actual charges made against her for the items represented in such receipts and there was no actual expenditure made out of the estate of this applicant for such items, and there were no such amounts spent by the guardian for the benefit of petitioner, and (e) such receipts and returns were made up to conceal that the money thereon represented had been lost or wasted in some other manner, unknown to petitioner, and same constitute a fraud on the court of ordinary and against the petitioner. The petitioner further alleged that in the second return the item shown as voucher 16, charged against petitioner's estate, is erroneous, fraudulent and void, and is improperly charged and admitted to record against petitioner for the reasons set out above as to vouchers 1 and 8 in the first return, and that in the third return voucher 17 is void and...
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