16 S.E.2d 120 | Ga. Ct. App. | 1941
1. The bill of exceptions, in which error is assigned on the order of the court disallowing an amendment to the petition, on the direction of a verdict, and on the order overruling a motion for new trial, is not subject to dismissal for failure to comply with the requirements of the Code, § 6-804.
2. By virtue of the Code, § 49-301, a ward, after reaching majority, may apply to the ordinary for an order requiring his guardian to appear and submit to a settlement of the accounts of the ward's estate.
3. The approval by the ordinary of the annual returns of a guardian is prima facie evidence only of the correctness and legality thereof, and in a proper proceeding after reaching majority a ward may attack such returns.
4. An action against a guardian growing out of his failure to settle with his ward may be instituted by the ward, pursuant to the Code, § 3-709, within ten years after the accrual of the right thereto. *577
5. An amendment to a petition filed by a ward against her mother, as guardian, for a settlement and accounting, in which the ward attacks the legality and correctness of the returns of the guardian, specifying in such amendment with definiteness the grounds on which the ward questions the legality and correctness of the returns and the particular items of expenditures and vouchers attacked, was proper, and was not subject to the grounds of general and special demurrer urged by the guardian.
On September 3, 1940, the guardian, for answer to the petition and citation, alleged that she had had exhibited to her on that date the three annual returns of herself as such guardian, which had been filed in such court of ordinary, "reference to which is made," which returns were self-explanatory as to the handling of the estate, and which were signed by respondent, "who acknowledges receipt of the money and disbursements of the same in accordance with said returns;" that "respondent adopts said returns as her answer to this rule and makes this answer to each of the petitions filed in said case;" and "respondent shows that by her said returns *578 she has on hand $313.52, which is subject to further administration and to the direction of this court." Thereupon Mrs. Pettigrew offered an amendment to the petition for settlement and accounting in which she alleged that the respondent as such guardian, on or about August 15, 1923, received $13,000 or more belonging to her wards in equal shares, and petitioner is entitled to a settlement from the guardian for one seventh of this sum with interest from that date. She further alleged that the guardian had filed three purported annual returns relatively to the estate of her wards, in which it was represented that all of the money received for them was spent on the wards, except about $300, and that each of said returns was void and of no effect. Mrs. Pettigrew alleged that the return for the period beginning May 7, 1923, and ending June 30, 1924, is void, because (1) the money therein claimed to have been spent for maintenance and education of petitioner was not in fact so spent; (2) the return is not accompanied by any valid vouchers showing expenditures made for the maintenance and support of petitioner; (3) the alleged vouchers accompanying this return, which appear to be made as receipts to the guardian and signed by the guardian, constitute no evidence to show such expenditures; (4) the return was not filed until June, 1926, which was two years after the period alleged to be shown therein, at which time it appears that all vouchers for maintenance and education of the petition were made by the guardian as receipts to herself, without any original account or record of such expenditures to authorize or support same; (5) it appears that the estate and accounts of petitioner were mingled with the estates and accounts of the other wards, and that no separate account was ever kept for the petitioner; (6) the return purports to show that a part of the corpus of the estate of the petitioner was spent for her maintenance and education without previous authority from the ordinary for any such expenditures, which is contrary to the law of this State; (7) there was never any order passed by the ordinary approving the return and admitting it to record, it being recorded in annual return book JJ, pp. 154 to 157, with a typewritten order thereon which has never been signed or approved by the ordinary; and (8) the return was false and fraudulent and constitutes a fraud against the ordinary and against petitioner. The returns for the periods from July 1, 1924, to December 31, 1925, and from *579 January 1, 1926, to December 30, 1926, were attacked in such proffered amendment as being void on similar grounds.
The petitioner further attacked the record of the return for the period from May 7, 1923, to June 30, 1924, as appearing in such annual return book, as not being a true and correct record of the original return, because the record shows an order approving the return and admitting it to record, when in fact the original of such return and original papers of file in the matter do not show any such order and do not show that any order was ever passed by the ordinary for the approval of the return. It is alleged that the record of such returns is typewritten, the order on the record is typewritten, and the name of Hon. Wm. M. Jones, ordinary, on the record, is typewritten, and there is no actual signature of the ordinary on the original return, nor on any order in the original file for the approval of the return, nor on the record thereof; that such erroneous record of the return and order should be disapproved as erroneous so that no exemplified copy of such record may ever be used "at any time anywhere," and that any such exemplified copy would show the order with the signature of the ordinary thereof and would not be true and correct. On the same grounds and for the same reasons petitioner attacked the return covering the period from July 1, 1924, to December 31, 1925. The ordinary refused to allow this amendment. The petitioner, on September 5, 1940, appealed from this judgment to the superior court of Thomas County. The case came on for trial before a jury in that court on October 22, 1940, and petitioner offered the foregoing amendment which had been tendered in the ordinary's court and disallowed therein, and at the same time offered another amendment to the original petition or application.
In this latter amendment petitioner alleged that in the return from May 7, 1923, to June 30, 1924, the items shown as vouchers 1 and 8, charged against petitioner's estate, are erroneous, fraudulent, and void, and are improperly charged and admitted to record against her, because (a) the sums therein represented were not spent for petitioner's board, laundry, clothing, schooling, education, maintenance, and support; (b) the alleged vouchers accompanying the return appear to be nothing more than receipts made by the guardian to herself, without any original bills or invoices for any expenditures, and such receipts constitute no evidence as *580 vouchers and no evidence to show any proper and legal charge against the estate of petitioner; (c) as to such items the return is not accompanied by any valid voucher showing any legitimate expenditure of such amounts, or any part thereof, except out of the estate of petitioner; (d) the petitioner lived at home with her mother, and there were no actual charges made against her for the items represented in such receipts, and there was no actual expenditure made out of the estate of this applicant for such items, and there were no such amounts spent by the guardian for the benefit of petitioner; (e) such receipts and returns were made up to conceal that the money thereon represented had been lost or wasted in some other manner, unknown to petitioner, and same constituted a fraud on the court of ordinary and against the petitioner. The petitioner further alleged that in the second return the item shown as voucher 16, charged against petitioner's estate, is erroneous, fraudulent, and void, and is improperly charged and admitted to record against petitioner for the reasons set out above as to vouchers 1 and 8 in the first return, and that in the third return voucher 17 is void and improperly charged against petitioner for the same reasons above set forth in the amendment as to vouchers 1 and 8 in the first return; that she obtained her first knowledge that such returns were of file in the court of ordinary on or about June 15, 1940; that she had been told by the guardian and the guardian's attorney that no settlement could be made with her until her youngest brother and sister, who were also wards of the guardian and who are not yet of age, became of age, and petitioner was thereby induced to make no investigation and take no action seeking a settlement with the guardian. The guardian filed certain demurrers and objections to the allowance by the court of the amendments, and alleged that they failed to set forth any cause of action or to show wherein the returns were illegal or unlawful, or that the guardian had wasted or mismanaged or was wasting or mismanaging petitioner's estate; that it appears affirmatively therefrom that the petitioner has not shown due and proper diligence in attacking the returns of her mother as guardian, and is barred by the statute of limitations and by her laches and neglect; that "there is no allegation that the court of ordinary and the Honorable W. M. Jones, judge thereof, did not have before it satisfactory proof that the amounts charged against plaintiff by her mother as guardian for *581 her schooling, education, and support, were not rendered for her benefit, and there is no allegation that she did not receive the benefit of her said estate in said manner, or that the charges for such services were not reasonable and proper;" and that "there is no allegation that her mother as guardian was financially able otherwise to furnish the said services, or that the plaintiff received her living expenses and support in any manner different from that stated in her mother's returns as her guardian, which were approved by said court." The guardian also demurred and objected to various paragraphs of the amendments on the ground that same did not show any fraud, and set forth only conclusions of the pleader, and because no copy of the returns and vouchers attacked therein were attached thereto. She also demurred to the amendments on the ground that no sufficient facts were alleged to show that the judgment of the ordinary approving the returns was void, and that in the absence of fraud, accident, or mistake, such judgment can not be set aside and is binding on petitioner.
On October 22, 1940, the court sustained such demurrers and objections on each ground thereof and disallowed both amendments. The case proceeded to trial on the same day, and the guardian introduced in evidence certified copies of the three annual returns above referred to. No evidence was introduced by the plaintiff. The court thereupon directed a verdict in favor of the returns of the guardian, and that plaintiff have her share of one seventh of the estate, which, as shown by the last return, amounted to $313.52, and a verdict so finding was rendered on October 22, 1940. The plaintiff on the same day moved for a new trial, and on October 30, 1940, the court overruled the motion and the plaintiff excepted. In the bill of exceptions the plaintiff also assigned error on the orders disallowing the two amendments offered by her, and on the order sustaining the demurrers and objections to the amendments. To the verdict and judgment the plaintiff excepted because of the errors previously made in disallowing her amendments.
On the judgment overruling her motion for new trial the plaintiff assigned error because of the errors that had previously been made in disallowing her amendments, those errors making all that happened thereafter nugatory, and because the legal effect of the disallowance of the amendments was to preclude her from introducing any evidence on the trial to prove any facts alleged in the *582
amendments, and because the judgment was contrary to law and the principles of equity and justice.
1. The defendant in error contends that the bill of exceptions should be dismissed on the ground that it contains no valid assignment of error, and that the rule as to assignments of error in a direct bill of exceptions applies in view of the fact that the verdict was demanded by the evidence and the only alleged errors insisted on are the disallowance of the plaintiff's amendments and the sustaining of the general demurrers thereto, and it does not appear in the bill of exceptions that the "verdict necessarily has been controlled by" such antecedent rulings. Code, § 6-804;McRae v. Boykin,
2, 3, 4, 5. This is a case involving an application by a ward to the court of ordinary for citation to issue against her guardian, *584 who was the ward's mother, to appear and submit to a settlement of her accounts. The ward sought to amend such application, and these amendments were disallowed and the demurrers of the guardian thereto were sustained. In the petition and proffered amendments the returns of the guardian were attacked as not being true, as containing improper charges against the ward's estate, as being illegal and fraudulent, and as not being sufficient in that there were not attached thereto proper receipts and vouchers showing certain alleged expenditures. The ward attacked two of the annual returns on the ground that the original returns do not show any order of the ordinary approving them, in that there is no actual order of approval by the ordinary on the original returns, although the record of such returns appearing in the annual return book of the ordinary shows an order approving such returns and admitting them to record. It is alleged that there is not a true and correct record of the original returns for this reason, and that "such erroneous, so that no exemplified copy of such record may ever be used at any time anywhere." It is contended by the guardian that such returns are binding on the ward, and that the petition and offered amendments failed to set forth a cause of action or state wherein the returns were illegal, and failed to sufficiently specify the grounds of attack on such returns. In addition the guardian contends that the ward has not shown proper diligence in discovering or attempting to discover the facts on which she relies to annul the judgment of the court of ordinary in the matter, and is barred by her own laches and neglect and by the statute of limitations from attacking the returns and objecting to the items charged by the guardian therein to the estate of the ward. It is contended therefore that these returns, having been approved by the ordinary, are now binding on the ward.
The ward is not barred by the statute of limitations in seeking an accounting and settlement with her guardian, although the application or petition therefor was instituted approximately eight years and three months after the ward attained her majority. A ward, when arriving at majority, may apply to the ordinary for an order requiring her guardian to appear and submit to a settlement of her accounts. Code, § 49-301. For the purpose of settlement of accounts between the guardian and the ward the relationship of *585
guardian and ward does not terminate when the ward reaches majority. Morgan v. Woods,
"Pleading which attacks the returns made by a guardian to the court of ordinary which has been examined and allowed by the court, should point out specifically the items of the returns on *586
which the attack is made, and as to each should disclose the cause or ground of the attack. It is not enough to allege that the return for such and such a year is unlawful as to a specific amount, without pointing out the items alleged to be unlawful, and without stating in what the unlawfulness consists." Bonner
v. Evans,
The ward attacks the returns on the grounds that the money therein claimed to have been spent for maintenance and education was not in fact so spent; that such returns are not accompanied by valid vouchers showing the expenditure of such money for the maintenance and education of the ward; and because the purported vouchers accompanying such returns are not evidence to show such expenditures for the reason that they appear to be made as receipts to the guardian and signed by the guardian. It is alleged that the returns were not filed until many months after the alleged expenditures from the corpus of the estate for the maintenance and education of the ward, and that all vouchers for such expenditures were made by the guardian as receipts to herself "without any original account or record of such expenditures to authorize or support same." In Hendry v.Hurst,
Primarily the duty to support, maintain, and educate the children rests on the father. Robison v. Robison,
Therefore the law is that parents are legally bound to provide for the support and education of their children during infancy, and that where a mother on the death of the father has the support and custody of minor children, and is appointed their guardian, she is charged with the duty to provide the necessaries of life for the children. The mother, as guardian, would be entitled to reimbursement for expenditures made by her for such support and maintenance, or to pay directly therefor out of a separate estate inherited by such children, only where it appeared that the mother was in such financial circumstances that she was unable to provide such support and maintenance and that the children's separate estate was abundantly sufficient for that purpose and that she so applied it.
The ward in this case charges that she lived at home with her mother; that there was no actual charge made against her for the items represented in the returns; that there were no actual expenditures made out of her estate therefor; that there were no such amounts spent by the guardian for her benefit; and that the items in such returns were made up to conceal the fact that the money therein represented had been lost or wasted in "some other manner unknown to" the ward.
Brown v. McWilliams,
Applying the above principles the court erred in disallowing the amendments offered by the ward and in sustaining the demurrers thereto. This rendered nugatory all subsequent proceedings.
Judgment reversed. Sutton and Felton, JJ., concur.