89 Ga. 656 | Ga. | 1892
■ A petition against Bonner, guardian of Lydia T. Evans, a lunatic, for citation to account and settlement, for cancellation of the letters of guardianship, and for the appointment of some proper person as guardian, was presented to the ordinary by Rosa Lee Evans, as next of kin and an heir at law of said Lydia T.; and the ordinary ordered the guardian to show cause why the petition should not be granted. The case was transferred to the superior court by consent appeal.. The defendant demurred to the petition, on the grounds that it failed to set forth a cause of action or to state wherein the returns were illegal, or that the remaining surety on ñis bond was insolvent. Tbe demurrer having been sustained, except as to the allegation touching the insuffi
Said Bonner received as guardian from Evans, the former guardian of said ward, $409.90. The returns of 1884 are unlawful, because Bonner makes unlawful charges of $77 for board of the ward for 1883, $16 for store account, and $29 for attorneys’ fees. “ Returns of 1885 of said O. P. Bonner guardian was unlawful, to, wit: to account for self for board and tobacco, $59.60. The returns of said O.. P. Bonner as guardian for 1886 is unlawful, of about $80, the taxes included in this amount, the whole returns being $82 paid from the fund, and no part of same is lawful except the tax. The returns of the said O. P. Bonner for the year 1887 is unlawful to the amount of $15. The returns of said O. P. Bonner for the year 1888 is unlawful to the amount of $53. The returns of the said O. P. Bonner for the year 1889 is unlawful to the amount of $53.10. All of said returns is unlawful, making a total of $393.30 of the ward’s money unlawfully used by said guardian, O. P.
1. The objection as to the sufficiency of some of these allegations was well taken. Where an attack is made upon returns which have been examined and allowed by the court of ordinary, it is incumbent upon the party who attacks them to show wherein they are unlawful, and in his pleading he should point out specifically the items of the returns on which the attack is made, and as to each should disclose the cause or ground of the attack. It is not enough to allege, as the plaintiff did in this case, that the return for such and such a year is unlawful as to a specific amount, without pointing out the item alleged to be unlawful, and without stating in what the unlawfulness consists.
2. It is complained that the court charged the jury as follows: “ An approval of the ordinary of an annual return of the guardianship, induced by fraudulent practices or representations of the guardian upon the ordinary to procure such approval, is inoperative and of no effect.” This instruction was erroneous, because the fraud of the guardian would vitiate the returns and their approval only in so far as the fraud extended. If it went to the whole of the return, the whole would be vitiated; if only to certain items, those only would be vitiated.
8. It is alleged as error that the court instructed the jury to find generally for the defendant, or to find for the plaintiff whatever amount was found to be due by the defendant to the ward, but did not submit to them any question or issue touching the cancellation of the letters of guardianship, or whether the defendant should retain control and disburse as guardian any amount found to be due by him, or whether this amount should
The guardian of the person and property of a lunatic is entitled to retain possession and control of his ward’s effects so long as he continues guardian; and to deprive him of such possession and control before the ward is restored to sanity, it is necessary that his letters be revoked and another guardian appointed. If a next friend suing in behalf of the ward can maintain an action for waste committed by the guardian, or recover money in his hands, it can be done only in connection with a proceeding to remove the guardian and revoke his letters. A recovery for so much money, without any disposition of the case in so far as relates to removal or revocation, was therefore contrary to law.
4. It follows that the court erred in not granting a new trial. Judgment reversed.