Franklin v. McElroy

Supreme Court of Georgia

Franklin v. McElroy

24 S.E. 975, 99 Ga. 123

CourtSupreme Court of Georgia

DecidedMay 23, 1896

StatusPublished

Cited by1 cases

This text of 24 S.E. 975 (Franklin v. McElroy) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Franklin v. McElroy, 24 S.E. 975, 99 Ga. 123 (Ga. 1896).

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Opinion

Simmons, C. J.

1. According to repeated adjudications of this court, it is a good defense to an action upon a guardian’s bond that the guardian, in 1864, under a proper order of the superior court, invested the money of his wards in bonds of the Confederate States. The evidence in the present case strongly tended to establish, if it did not fully prove, the truth of this defense.

[124]*124May 23, 1896. By two Justices. Argued at the last term.

Action on bond. Before Judge Harris. Fayette superior court. September term, 1894.

Roan & Golighlly, for plaintiff. Dorsey, Brewster & Howell, for defendant.

2. If, however, the evidence was not sufficient for this purpose, and the wards’ money was not invested in Confederate bonds at all, or was so invested without an order of court, then there was a breach of the bond in 1864; and as the action was not brought until 1894, whioh was more than ten years after the youngest of the wards became of age, it was barred by the limitation act of 1869, there being nothing to show that the guardian had acted fraudulently or corruptly in the management of the estate. ,

3. Even if a statement contained in a return made by the guardian that he had invested the money under an order of court was not true, this alone did not constitute such a fraud as should have deterred the wards from sooner bringing their action, it appearing that they had abundant time and opportunity to ascertain the truth of the matter. See Lane v. Lane, 87 Ga. 268; Knox v. Laird, 92 Ga. 126, 127. Judgment affirmed.

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Simmons, C. J.

1. According to repeated adjudications of this court, it is a good defense to an action upon a guardian’s bond that the guardian, in 1864, under a proper order of the superior court, invested the money of his wards in bonds of the Confederate States. The evidence in the present case strongly tended to establish, if it did not fully prove, the truth of this defense.

[124]*124May 23, 1896. By two Justices. Argued at the last term.

Action on bond. Before Judge Harris. Fayette superior court. September term, 1894.

Roan & Golighlly, for plaintiff. Dorsey, Brewster & Howell, for defendant.

2. If, however, the evidence was not sufficient for this purpose, and the wards’ money was not invested in Confederate bonds at all, or was so invested without an order of court, then there was a breach of the bond in 1864; and as the action was not brought until 1894, whioh was more than ten years after the youngest of the wards became of age, it was barred by the limitation act of 1869, there being nothing to show that the guardian had acted fraudulently or corruptly in the management of the estate. ,

3. Even if a statement contained in a return made by the guardian that he had invested the money under an order of court was not true, this alone did not constitute such a fraud as should have deterred the wards from sooner bringing their action, it appearing that they had abundant time and opportunity to ascertain the truth of the matter. See Lane v. Lane, 87 Ga. 268; Knox v. Laird, 92 Ga. 126, 127. Judgment affirmed.

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Bluebook (online)

24 S.E. 975, 99 Ga. 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franklin-v-mcelroy-ga-1896.

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