Savannah morning news. [volume] (Savannah) 1868-1887, 1884-04-30
OPINION SUPREME COURT OF GEOR


nan.
BY the Court: HALL, J =, delivering opinion
Patrick Bowling died intestate on the l4th
day of December, 1866, leaving a widow, who
survived him only a few days, and three
minor children, the eldest of whom is the
present plaintiff, who was, at the death OF his
parents, only about five years old. John DAILY
administered on the estate, and qualified by
taking the oath and giving the bond required
by law on the first day of April, 1867 The
bulk of the estate vas in a drayage business
with one Moran, who was the surviving part
ner Of the intestate. This interest seems to
have been sold to John W. Reilly for
the sum of 81 1892, who gave his note therefor,
audit went into the hands of the administra-
tor. From the scattering returns Of the adj
mlnistratOr and other written admissions OF
his in evidence, it is pretty clear that he
realized every dollar of the principal of this
note. together with the interest accruing
| thereon annually. No inventory or appralse-
ment of the estate appears to have been made
or returned. There are only two annual re-
/ turns made out and sworn tO-oDe In 1863, the
other in 1870. Other statements in the hand
| writing of the administrator, some of them
not sworn to, and none of them recorded or
put on file in the Court of Ordinary, though
| portion of them were found in the Ordnary's
! Office, but without the approval of that officer,
| were put in evidence By the plaintiff as adj
! missions on the part of the administrator to
| fix him with waste and mismanagement of
! the estate. This entire administration, from
its inception to its disastrous close, cOni0rmed
| to the law in scarcely single particular.
| The securities of this administrator, who was
/ NSdls dEdluet NlOIl lul6 SUIT " us bIbuEul duu
| prosecuted, defended upon two grounds, viz:
| LIST. That a higher value was placed on his
/ lntestates interest in the business OF Moran x
| Bowling than ii was worth; that Rellys note
| was taken therefor: that there was no proof
| that it had been paid except the testimony of
| Reilly himself, which ii was claimed was con-
/ tradicted in material particulars by record
/ and other writings in the case, ana was
| deemed unreliable on accOuntO Of his past men,
| tai inlirmlty, and second, that the entire
1 amount of plaintiffs interest in the estate OF
| lie af haH haar por1err cd n q
| nance and education, for which he expressed
| a Willingness to account in settlement with
| the administrator while on the stand as
1 witness in this case, and large portion OF
| which had been allowed by the Ordinary when
| returned to that court by the administrators
| These defenses, under the instructions OF the
| court and the facts admitted in evidence,
| prevailed. A motion to set aside the verdict
| in their favor and to grant new trial was
made by the plaintiff upon numerous grounds
| which was Overruled and denied, and to that
J decision exception was taken.
!. The court admitted the testimony Of
! several Witnesses, over the objection OF PLAIN
/ tin, to prove the actual value OF the effects or
| intestate. in the firm of Moran & Bowling,
| for the purpose Of showing that they were
| worth less than the price for which they were
| sold by the administrator. Error is assigned ON
/ this as set forth in the 18th and 9TH grounds of
the motion for a new trial, as well as upon the
| charges based on it as set forth in the 22d and
| 23d grounds of said motion, as follows: 22d,
| Because the court erred in giving in charge
| to the jury the following request made by de-
PENDANTS: 1.-THE defendants are not required
! to account for the proceeds of any property
/ in which the estate of Bowling had no inter-
est. even if the proceeds of such property
} went into the hands Of John DAILY, and he
! charged himself with the same in his accounts
/ as administrator of the estate of Downing,
/ there being no evidence to sustain such
| charge.
23d Because the court erred, after giving
! the said request, in charging the jury as fol-
/ lows: "That is to say if DAILY. as administra-
| tor of Bowling, received into his hands money
| or other thing which did not belong to the es-
tate, and, by mistake or accident, charged
/ himself with it as belonging to the estate,
! when it did not belong to the estate, he would
not be liable for that himself, nor would his
suleties be liable, there being no evidence
1 that the said DAILY had received, as sad ad-
ministratOr, money or other thing which did
| not belong to the estate, or OF any mistake or
| accident"
! other trustee is entitled to appropriate to his
| own use any supposed excess in the value, for
| which property entrusted. to him may have
| been sold. we are unable to comprehend. 1t is
| a fundamental rule that he can make no profit
| for himself out of the trust estate. This prin-
| ciple is so well established and so universally
recognzed-indeed SO essential to the
| honest and proper management OF
| property so situated that he is never en-
| cOuraged to take risks with il for his
| personal ACKNOWLEDGMENT; on the contrary,
| he is restrained from so doing by being COM
| pelleG, if his venture turns out unfortunately,
to account for the full value of what is lost,
| and if ii be successful he Is to turn over his
| gain to the beneficiary of the fund embarked
in the enterprise, Code 1882, 3S Ca, rs to 9S;
| H.. 1872 to ass. This rule applies not only
| to trustees 60 nOH1ine, but to all persons sus
| tanning confidential relations to others such
| as executors and administrators, guardians,
| agents. officers, partners, attorneys, etc.
| Mayor of Macon VS. Hun 60 Ga, 22l, 22S, 229.
| While it is not denied that the administrator
is amenable to this law, it is insisted, never
| theless that there should be a relaxation Of
| It IN favor of his sureties. But why: Is 1t not
! one Of his duties to account faithfully for
| what comes into his hands. and do they not
| engage by their obligation that he shall per-
! form this among other duties, and if he fails
TO do so, is ii not their undertaking to make
| good his default in this as in other respectsy
! such Is the condition of their bond, without
! which he could never have become admins
| traitor and been intrusted with the power to
| take and manage the estate. Code 2506.
| The fine price which this property brought
| does not appear to have been due to the skill,
| fidelity and good management of the admins
| traitor. but TO the advantageous and fortunate
| condition IN which It was left by the lntestate.
| growing out Of his connection in business with
! Moran, and his Willingness to continue in
| business with the party who purchased it.
| We have searched this record in vain for
| any evidence that the return Of this property
| by the administrator at the price for which it
| sold, was the result OF either accident" or
| mistake" or that ne charged himself with
/ property as belonging to the estate when it
4 did not belong to the estate" On no princi-
/ pie of law was this evidence competent or the
4 request ana charge given TO the jury JUSTIN
! able. Neither can rest on amy sound legal
/ basis, and, were there nothing else objection
| able in the case, this alone would compel
| US to set aside the verdict and order 4 new
| trial. But there are other errors quite as
! fatal, and, if possible, more so.
| =. 1t Is manifest from the record that this
! administration has been in almost every
/ respect irregular and illegal. Neither lnven-
| tory nor appraisement has been made and re-
| turned, and during the whole time it con-
| tinucd only two returns of the administra-
/ tors actings and dOings with the estate were
| made to the proper cOurt-the first nearly
| year and a half after his qualification and the
| second two years thereafter. There was no
reason why the estate should not have been
speedily wound up and turned over to
| the distributes; that they were minors
! affords no excuse for the delay. II they had
| no guardians the Ordinary, upon proper APP
| plicatiOn made, would have appointed them.
| It was the fault Of the administrator that the
matter was so long neglected; the estate
| seems to have been kept in his hands for an
| object; he appears to have held it that he
might retain the custody of the persons of the
minor children eventually entitled to it, and
| that he might absorb not only its entire in
| come but corpus in their support and educa-
| ton. He usurped the office Of guardian and
| exercised all lts powers and privileges, while
| he seems to have regarded none of the duties
| and responsibilities growing out of the rela
! ton.
The court in its rulings and charges seems to
| have recognized his right to do so, and to have
| extended to him higher privileges than those
| accorded 10 regularly appointed guardian
| III The settlement OF his accounts with his
| ward. BY the law a guardian is allowed all
| reasonable expenses and disbursements suit
| able 10 the circumstances OF the orphan COM
| mitted 10 his care, but the expenses of main
| tenance and education should not exceed the
| annual profits Of the estate except by the
| approval Of the Ordinary previously granted.
| The Ordinary may. in his discretion,
allow the corpus of the estate, in
| for the maintenance and education OF the
| ward. Code 1924. This discretion to en-
crOach upon the corpus is conhded to the Ordi-
| nary and TO him only; he represents the State
| which. as ldreRS Ddtrig, stands in loco Ddrea-
| It's to minors, and does for them what IT is
reasonable to suppose their parent, if in life,
would do, and what is for his family interest
| and honor. The,Ordinary is the chosen organ
| to exercise this authority and he cannot dele
| gate It to another; but it seems that where
the trustee has exercised ii, fairly and proper
| ly without the consent of the Ordinary pre-
| yiOusly given, and when prompt and regular
annual returns in that behalf have been made
| the Ordinary by his approval of such re-
! turns may ratify this action. No de-
| cision of the court has gone further than
this, 10 Ca, 45li 20 h., 335; 20 h.. $50: 81 h.,
| 452. In Hagine VS.. Dunlap at the present
/ term OF the court this question arose incident
| ally, and we construed section 1924, with 2540
of the Code, and concluded that under the
authority given in each of them, neither a
| guardian nor an administrator who has paid all
| Just debts and claims OF every sort against the
estate OF his intestate, and had left in his
| hands effects or property belonging TO minor
| heirs, Tor whom no guardian had been APP
| pointed, or for whose guardianship no one
| applied, could appropriate to the support of
/ his ward, or such minor heir, without the APP
/ prOval OF the Ordinary, more than the income
| of his estate.
In the 59th Ca, 705, the present Chief JUS
| tice said, IN pronouncing the judgment of the
| court: sit appears that the corpus of the es-
tate was encroached upon by the guardian
| without any order of the court therefor, which
| is against the statute that allows il tn he done