Poullain v. Poullain
| Decision Date | 08 April 1884 |
| Citation | 72 Ga. 412 |
| Parties | POULLAIN et al. v. POULLAIN, SR., and vice versa. |
| Court | Georgia Supreme Court |
February Term, 1884.
1. Where the judge certifies in the bill of exceptions that a new trial was granted on a special ground, but the order in the record is general and specifies no particular ground, the latter will control.
( a. ) There was no abuse of discretion in granting a new trial in this case.
2. Where exceptions to a master's or auditor's report in chancery are sent to a jury, they should pass upon them only so far as the matters of fact submitted are concerned, and must return a verdict on each exception seriatim. They are not authorized to pass over the exceptions made by one of the parties without any return as to either of them or having found on each of those submitted by the opposite party, to aggregate the sum found under each particular head whether this be done correctly or erroneously.
3. Neither the general statute of limitations nor the act of March 16, 1869, was applicable to this case. No cause of action could accrue during the minority of these complainants and during the continuance of the fiduciary relation between them and defendant.
4. Letters of dismission granted to a guardian under section 1849 of the Code, like other judgments of courts of competent jurisdiction, are a bar as to the matters covered by them unless set aside for fraud in their procurement, or for other sufficient cause.
( a. ) The right to re-open a final settlement between a guardian and ward within four years after it is made relates to settlements between the parties themselves without the interposition of a court of ordinary, and not to a discharge of that court, upon final settlement and after due citation and publication of notice.
5. The cases of Beall et al., ex'rs, vs. Clark et al. and Hughes vs. Hughes (last term) cited as fixing the amount and character of the evidence necessary to decreeing the specific performance of a parol gift of land by a parent to a child.
( a. ) Costs in both cases taxed against plaintiffs.
Practice in Supreme Court. Equity. Verdict. Statute of Limitations. Guardian and Ward. Judgments. Ordinary. Before Judge LAWSON. Greene Superior Court. September Adjourned Term, 1883.
Anna M. Poullain and Hallie B. Poullain (the latter through Anna M. as her next friend) filed their bill against Thomas N. Poullain, alleging, in brief, as follows: Junius Poullain, the father of complainants, died in Floyd county in 1862. Their mother was about to take out letters of administration on his estate, but defendant, who is their grandfather, proposed to relieve her of the trouble of administration, and to preserve the estate for her and her children just as it had been enjoyed during the lifetime of Junius. Defendant procured one McCullough to administer on the estate, and defendant himself became the guardian of complainants. In 1863, he received from the administrator $1,600.00, which was the share of complainants in the personal property of their father's estate. This was all that defendant had charged himself with as guardian, though, in fact, he had received other large amounts of property. When complainants' father died, defendant held the title to a certain plantation in Floyd county; in so doing, he was the naked trustee of the former, who was afflicted with epilepsy. After the death of Junius, defendant took possession of the place, and shortly thereafter sold it to an innocent purchaser without notice; and defendant became liable to each of complainants for one-third of its value, which was placed at $10,000.00. Defendant also had the charge and management of a one-seventh interest in what was known as the Fontenoy Mills property, which interest belonged to them, and he had received considerable sums therefrom. (An account was attached, including items extending from 1863 to 1868.) One William S. Poullain, an uncle of complainants, died in 1862, leaving an estate in which complainants had an eighth interest. Defendant was surety on the bond of the administrator, and permitted the claim to become barred by the statute of limitations, and thereby became liable to complainants. (This claim, on account of the estate of William S. Poullain, seems not to have been pressed on the trial.) They have received nothing from defendant, except their support and education and a house and lot in Greensboro, furnished to them and their mother in 1879. The prayer was for an account and settlement.
Defendant answered, in brief, as follows: Admits receiving $1,600.00 as the guardian of complainants, arising from their father's estate. That was all he ever received, and it was invested in Confederate securities, which proved worthless. There was nothing else coming to them from their father's estate, except their pro rata share of $126.91 in Confederate money, which is still in the hands of the administrator. Denies that the Floyd county plantation belonged to the father of complainants; asserts that it belonged to defendant, and complainants' father was allowed to remain in possession simply as a tenant at will; denies that complainants or their father owned any interest in the Fontenoy Mills property, but asserts that it was owned exclusively by defendant; denies that he received any income from that property as guardian of complainants, sets out an account of advances made to complainants, amounting to $14,294.89, and prays a decree for balance due to him. By amendment, $4,620.00 was added to his charges. Alleges that on April 7, 1879, he was regularly discharged from his guardianship of Anna M. Poullain by a judgment of the court of ordinary having jurisdiction of the matter, she having become of age; pleads that Anna M. became of age on the-day of-,187-; that the gravamen of this case is a cause of action which arose prior to June, 1865; that she did not bring suit within nine months and fifteen days after becoming of age, and is barred; also pleads that he is still the guardian of Hallie B. and entitled to the possession of her property, and that she cannot, by this suit, recover it from him. The entire estate of William S. Poullain became worthless by reason of the results of the war.
The case was referred to an auditor, the substance of whose report was as follows:
1st. That the title to the house and lot in the city of Greensboro, Georgia, mentioned in the bill of complainants, was in the defendant until March, 1879, and that he did not hold said property in trust for complainants.
2nd. That complainants had no title to the real estate in Floyd county, Georgia, which they mention in their bill, and cannot recover it or the proceeds thereof, for the reason that the statute of frauds prevents them from asserting title to the same, and that defendant is not estopped from pleading said statute.
3rd. I find that the investment made by the defendant, which he mentions in his return of May 24, 1864, to the ordinary of Greene county, Georgia, relieves him from all liability to complainants for the money he received, as their guardian, from the administrator of their father's estate.
4th. I find that the discharge of the defendant as guardian of Anna M. Poullain is a bar to any right of action which said Anna M. ever had against him as such guardian
5th. I find that the other complainant cannot maintain her action against the defendant, she being a minor, and he being her guardian.
6th. I find no evidence sufficient to establish the title of complainants to any of the Fontenoy Mills property, or its dividends.
7th. I find that the evidence does not show that the defendant ever gave, or intended to give, the real estate in Floyd county, Georgia, to the father of complainants, and that they have no title, or acquired no title, by prescription.
" If I have made a mistake as to the law and facts of this case, then I report that the defendant, as guardian and trustee, is chargeable with the sum of $7,002.01, which sum includes interest to September 15, 1880, and that he has expended the sum of $8,347.55 for the maintenance and education of complainants, which said expenditures are an equitable set-off against the sums chargeable to him ...
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