Bethune ex rel. Fanning v. Green

27 Ga. 56

• Court: Supreme Court of Georgia
• Decided: January 15, 1859
• Status: Published

Opinion

By the Court.

Benning, J.

delivering the opinion.

Was the charge of the Court below right ?

We think it was.

■ The duty imposed on the guardian, by his bond, was, to “take due and lawful care of the” “property” of his wards.

The property ; this must mean, merely, such property of the wards, as was accessible to him.

Were the lands, in question, accessible to him? We think not. There was an order authorizing the administrators of the father of the wards, to sell the lands. This order gave to those administrators the right to retain the lands, as against the guardian, that they might sell the lands; and consequently, the order would have been an answer to any suit for the lands, brought by the guardian, against them. The presumption is, that while that order stood, the interest of the creditors and distributees, required, that the lands should be sold.

And then the lands were not granted, and the duty of granting them, was on the administrators, if not exclusively, at least, more properly, than on the guardian, for the expense of the grant, was a charge on the whole estate, rather than on the share of any distributee, and it was only the administrators, that had at command the whole estate.

Taking the case, then,as it appears in the record, we think, that the charge of the Court below was right.

Judgment affirmed.

*Judge McDonald did not preside in this case, on account of indisposition.