96 Ga. 156 | Ga. | 1895
George and Margaret Crawford filed their equitable petition against J. A. Parker, administrator of W. C. Parker, and against Hughes, sheriff, alleging that their mother died intestate in December, 1872, leaving them a large estate consisting of realty and personalty; that their father, George G. Crawford, was appointed their
1. There was no error in excluding the affidavit of J. T. Crawford, the security on the guardian’s bond. He was undoubtedly liable to the wards for any misappropriation of the trust funds by the guardian, and was therefore directly interested in the result of this proceeding. If he could enable the wards to recover the money misappropriated, it would relieve him from liability on his bond to that extent. If he were a party to the cause he could not testify, and, under the act of 1889, the other party to the cause being dead, he was disqualified as a witness, that act declaring that “where a person not a party, but a person interested in the result of the suit, is offered as a witness, he shall not be competent to testify, if as a party to the cause he would for any cause be incompetent.” (Acts 1889, p. 86, section I, (d).)
2. We think the court erred in rejecting the affidavit of the guardian. As guardian he was liable to his wards for any devastavit he might commit in the management of- their estate. If he misapplied any of their funds in purchasing property in his own name, and the vendor had notice that the money used for this purpose belonged to the trust estate, the wards are entitled to recover the same from the vendor; and if the money thus misappropriated' is recovered from the vendor, he can sue and recover the same from the guardian. So that the guardian is liable in either case. It seems to us; therefore, that his interest is evenly balanced. Being liable in either event to the one or the other, his interest does not disqualfy him as a witness. Hidell v. Dwinell,
Judgment reversed.