59 Ga. 722 | Ga. | 1877
The court granted a new trial. The genei’al question for our decision is, whether there was an abuse of discretion in so doing. We need not examine all the grounds embraced in the motion. The case is so emphatically a complication, that the court was quite justifiable in overhauling it by another trial. There was certainly ex-ror in the charge, so far as it recognized the possibility of estoppel upon the minors by the knowledge of their rights, with presence at or near the place of sale, and failure to make known their objections. There was no evidence that they knew their rights. We do
Of course, if the sale was valid, apart from the consent or acquiescence of the minors, their failure to forbid it, with knowledge of their rights, would have nothing to do with the matter, and charging upon the subject at all was error. The jury may have found their verdict upon that charge, so that the real case may never have been tried. ¥e think it was error, moreover, to admit evidence of the wishes of the deceased executrix, and of other members of the family, as to who should succeed her in the administration, such evidence being irrelevant. Also, that it was error of the same kind to admit evidence that the adult sister of the minors, who subsequently became their guardian, urged a sale of the lands. She was one of the parties that joined in the application for the sale, and that being so, whether she urged the sale was of no consequence, though she afterwards became guardian. These errors as to evidence, were of no real importance, and we rule on them that they may not incumber the ease hereafter. The real case lies in the two questions: Was the decree of sale void? and if so, inasmuch as a regular guardian of the minors received under it all the proceeds to which her wards would have been entitled if the decree had been valid, can the wards recover the land without refunding as much money as went into their guard
Upon the argument which we have heard, we are not prepared to take the case out of the hands of Judge Ilall, and prevent him from trying it over. We doubt not that a thorough sifting of the authorities is needed, and none such has taken place in our presence. Was the decree void or valid ? To answer this, it must be determined whether it is' ixi the power of a court of chancery to decree a sale of realty, where the legal title is in an infant. What was the common law ? Has that law been changed by statute in Georgia ? If no direct change, has there been an indirect or consequential change insulting from putting personalty and realty upon the same footing as to distribution, etc. ? What is the effect of investing the ordinary with power to order the sale of lands belonging to infant wards ? Is that power exclusive where the infant has a regular guardian, and does it exist at all where there is no regular guardian ? Is the jurisdiction improper for the ordinary and proper for chancery, because the infant has not a clear, uncontingent title, but a title af- ■ fected by the chances of survivorship, etc., and because there is a contingent remainder to unborn children ? How is the power of chancery affected by the object for which the sale is ordered, whether for maintenance or change of investment ? Can the decree now in question be rested on the power of chancery to interfere in the administration of estates? Some of the sources of light as to the power of chancery over the estates of infants are 2 Story’s Eq., § 1357; 2 White & Tudor’s Leading Cases in Equity, part 2d, p. 171; 1 American L. C., 267; Tyler on Infancy, 296; 1 Fonb. Eq., 88 ; Daniel’s Ch. Pr., “ Infants ” in the index; 3 Desaus., 18, 22; 6 Hill, 415; 9 Dana, 526.
If it should be ascertained that a court of equity in Georgia has power to convert an infant’s realty into personalty, either for maintenance or for the advantage of bettering the
Cited for plaintiffs in error : 53 Ga., 514; 13 Ib., 24, 467, 473; 11 Ib., 658; 14 Ib., 539; 29 Ib., 219 ; 37 Ib.. 257; 31 Ib., 601; 28 Ib., 353 ; 27 Ib., 167; 24 Ib., 434 ; 14 Ib., 323; 13 Ib., 1; 11 Ib., 294, 423. For defendants in error: 1 Daniel’s Ch. Pr., 204 note, 206, 216, note ; Code, §1821; 48 Ga., 648; 13 Ga., 24, 467, 478 ; acts 1865-6, p. 221.
Judgment affirmed.