Watson v. Warnock
31 Ga. 716
Ga.
1861
Check Treatment

By the Court. —

Lyon, J.,

delivering the opinion.

Simeon Warnock applied to the Court of Ordinary of Burke county, for the guardianship of Martha Lourania Tindall, minor child of Everett Tindall, deceased. Green G. Watson caveated the application, claiming the right himself to the guardianship of the child as next of kin, he being the maternal uncle, while the applicant was only a cousin to the child’s deceased father. On the hearing, the Ordinary refused the application of Warnock, and gave the guardianship to Watson, as the next of kin. From this judgment, Warnock appealed to the Superior Court, and on the hearing before a special jury, the verdict was had in favor of Warnock, reversing the judgment of the Ordinary. A motion was made for a new trial by Watson, on the grounds that the verdict' was contrary to law and evidence. This motion having been refused, Watson excepts, and that is the case now before us.

1. The Court of Ordinary has the power to grant letters of guardianship for infant children under the age of fourteen years, to any applicant for the same, “or to such other person as in the discretion of the Court may be proper.” Cobb, 338. The power is given to the Ordinary to be exercised for the benefit of the infant, not the applicant. In Georgia no one can claim the guardianship of a child other than his own, as a right, no matter how nearly related.

2. The Ordinary exercised that power in this case, and under, the law, an appeal was taken to the Superior Court. That appeal carried to the Superior Court the whole case to be tried on its merits, without reference to the judgment of the Ordinary. The Superior Court having the same power and discretion for the adjudication and settlement of the question of guardianship in that application by virtue of the appeal as the Court of Ordinary had.

3. When the case came up for trial, the presiding Judge of that Court viewing the issue between the contestants as one of fitness for the office, rather than of right in the individual, and very properly so submitted the question to the consideration of a special jury selected for that purpose, to *719be determined upon the proofs submitted by the parties. Aftef hearing the evidence, the jury returned a verdict which must be a final 'settlement of the question in issue unless it was so decidedly and strongly against the evidence as to compel this Court to interfere with the discretion vested by law in the tribunal trying this issue. And instead of the verdict being against the evidence, any other than the one rendered, would have been so, most decidedly. All the evidence submitted on this point was, that Warnock, the applicant, was a prudent and judicious manager of property, kind, humane, and a most fit person to take charge of the person and property of the minor. Each of the witnesses examined on this point concur in this evidence and there is nothing in conflict, nor is it pretended that the testimony is not the truth — there is no issue upon it. On the other hand, Watson, the contestant, offers no evidence to show that he is a fit and proper person to receive the guardianship, either of the person or property of the child; but he rests his right exclusively on the ground of "his relationship to the infant, and that, as we have stated, amounts to nothing.

4. Add to all this, the dying wishes and earnest requests of the father of the child — which we hold to be a proper circumstance for the consideration of the Court in determining the application, and, áll other things being equal, sufficient to turn the scales in favor of the person so designated, and there is no room left for a doubt as- to the propriety of the finding. . |

JUDGMENT.

Whereupon, it is adjudged by the Court, that the judgment of the Court below be affirmed.