111 Ga. 307 | Ga. | 1900
Section 2533 of the Civil Code declares that“The surety of any guardian on his bond, or, if dead, his representative,- may at any time make complaint to the or
As to the remaining charges, we think they afford excellent reasons for the surety to “desire” to be relieved, and for retaining the application in court. If these charges are established, they are sufficient to show that the guardian is not a suitable man to manage the estate. Under such circumstances, a surety is not bound to wait till he becomes liable for actual waste or mismanagement. He may reasonably anticipate the same and move for relief in time to get relief. It is true that the demurrer does specially raise the point that some of the charges made against the guardian are based on acts which occurred before the bond was signed. This fact, of itself alone, would not defeat the right of the surety to be discharged, however,— certainly not, if it assumed liability upon the guardian’s bond in ignorance of such previous acts on his part. Nothing alleged in the application warrants'an inference to the contrary. It was doubtless open to special demurrer in that it did not undertake to state what was the real truth in this regard, but.no such point was presented. One who becomes surety for a guardian under the belief that he is in all-respects a suitable man for executing the trust has the very best of reasons for desiring to be released from liability on the bond when he learns that his principal is not such a man. We must not be understood as-intimating any opinion as to the real merits of this controversy. We are simply dealing with allegations which, on demurrer, must be taken as true. Having dealt with every question thereby raised which was argued before us, our conclusion is that the demurrer should have been overruled. It will, of course, be incumbent on the company to prove its charges
Judgment reversed.