Flanegan v. Garrison

28 Ga. 136

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

Opinion

By the Court.

Benning, J.,

delivering the opinion.

Was the court right in excluding from the jury the will of Benjamin Sausing? We think not. The will showed title in Dorcas Sausing, one of the complainants, she having become the wife of Baxter M. Garrison, the other complainant; and Elanegan claimed under her. It was, therefore, a part of the case he had to make out, to show title in her.

Was the court right in rejecting the evidence offered by Flanegan, to prove the agreement between him and Dorcas Sausing, by which she was to settle one half of her property that was in dispute, (provided he recovered it for her,) on her son, Joel, of whom Flanegan was the illegitimate father; and to prove that she ratified the agreement two years after’she became twenty-one years old? We think not. The ground upon which the rejection of this evidence was put was, that “a contract of that nature, made between guardian and ward,” was “void per se; and that no subsequent contract or agreement could give it validity.”

Was the court right in this view ? We think not. It is a question, whether any contract between guardian and ward is, per se, void. What law is there that puts guardian and ward, even as it respects each other, among the persons who are incompetent to contract ? But certainly it is not true, that there can be no valid contracts between them. And if there can be any, why not this be one ? This was a contract which conferred no benefit on the guardian, the mother being able to support the illegitimate child; a contract by which the ward, this mother, made a provision for her own child, and thereby performed a double duty; a duty to the child and to the public. She was bound to support the child, and the contract may be considered as merely making provision for his support. We cannot regard such a contract as this void, per se.

It is useless to consider the other grounds.

New trial granted.