Bryce v. Wynn

50 Ga. 332 | Ga. | 1873

Trippe, Judge.

1. It was held in the case of Pitts vs. Cherry, 14 Georgia Reports, 594, that a ward in Georgia, on arriving at the age of fourteen, has the right to choose his guardian, subject to the approval of the Ordinary. We do not think the right is taken away by the Code. Section 1806, new Code, in giving the privilege to a minor over fourteen years of age, who has no guardian, of selecting a guardian, was not intended to change the law in this respect. The Act of 1850, Cobb’s Digest, 338, implies what is specially provided in the section of the Code referred to.

2. Before the new appointment is made the letters of the former guardian should be revoked, and there should be a selection of a successor in the guardianship, who is willing to accept, and whose appointment would be judicious in the judgment of the Ordinary. The provisions in the Code, as to the resignation of guardians and administrators, show the care that is taken to prevent a vacancy in these trusts. In each case, before a guardian or administrator is permitted to resign he must present a fit and suitable person to the Ordinary as his successor, who is willing to accept. We think it a proper rule to be followed in the case of a ward selecting a new guardian before there should be a revocation of the letters of the former guardian: See 6 Georgia, 432.

3. In the first application made in this case, the Ordinary adjudged that no good reason had been shown to remove the guardian, and discharged the rule which had been issued. We do not think that this was a judgment against the right of the applicant to select a guardian, and to ask for the revocation of the letters of her present guardian. It does not so appear on the face of the judgment, or in the record. But we rather take it, that a good reason did not exist, from the fact of there having been no judicious selection of a new guardian who was willing to accept. Otherwise, we would have to presume that the Ordinary committed an error, and denied a legal right to the applicant. If, on a new hearing of this case, which we direct, it should appear to the satisfaction of the jury that the applicant has chosen a person whose selection, in the language of the Code, is “judicious,” to be appointed as guardian, and that such person is willing to accept, the application should be granted.

In this case, as well as in the case of Pitts vs. Cherry, supra, the first guardian was appointed by the Ordinary. We confine this decision as to the right of a ward to ask for the revocation and new appointment, to the cases of guardians thus appointed.

Judgment reversed.