Williams v. Adams

21 S.E. 526, 94 Ga. 270, 1894 Ga. LEXIS 64

• Court: Supreme Court of Georgia
• Decided: August 14, 1894
• Status: Published

Opinion

Lumpkin, Justice.

This was a somewhat complicated ease, and the questions brought to this court for review arose upon the-trial of exceptions to an auditor’s report. The material facts are stated by the reporter. The first and second head-notes indicate the controlling points in the case, upon which our, judgment of reversal is based. In the third and fourth head-notes, we have formulated questions which may arise oil the next hearing, but which are not now decided.

1. The court, among other things, instructed the jury that if they sustained the auditor’s report in full, the form of their verdict should be : “We, the jury, sustain the auditor’s report in full.” There being numerous exceptions to be passed upon by the jury, this charge was in plain violation of the express provision contained in section 4203 of the code, which declares that when exceptions to the report of an auditor are submitted to a jury, they “shall return a verdict on each exception seriatim.” We are therefore compelled to hold that this charge was erroneous.

2. The auditor, in effect, reported that the administrator with the will annexed had the right to pay and deliver to the mothers, respectively, of the minors interested in the estate, all of the money and property coming to the minors under the will of James Adams, in order to enable the mothers to apply the same to the maintenance and education of the minors. The view of the law thus entertained by the auditor seems to have been approved by the trial judge, and the main issue contested before the jury was whether or not, in point of fact, the money and property turned over to the mothers of the children was actually necessary for their maintenance and education, and was actually used for this purpose.

"Under the provisions of section 2540 of the code, an administrator has no authority to apply or pay, directly or indirectly, any portion of an estate in his hands belonging to a minor who has no guardian to the maintenance and education of the minor, without first obtaining the direction of the proper ordinary. In the absence of such direction, the payment to the mother of a minor would be totally unauthorized, especially so when it appears that the minor’s father is alive and the minor is residing with, him as a member of his family. It follows that the receipts given by the mothers to the administrator for the shares of their children, respectively, in the estate of Adams, were no legal protection at all to the administrator.

These plain rules of the law were recognized by the able counsel who appeared for him; but it was insisted that the approval by the ordinary of his returns, including the receipts just mentioned, legalized and made valid the administrator’s acts in the premises. We cannot concur in this view. The cases of Rolfe v. Rolfe, 15 Ga. 451, and 20 Ga. 325, and Smith v. Hilly, 29 Ga. 582, all of which were decided before the code, and Cook v. Rainey, 61 Ga. 452, and others to the like effect decided since the adoption of the code, do not sustain the contention of the defendants in error in this respect. These cases do, in effect, hold that, by approving the regular annual returns of a guardian showing on their face that the expenses of maintaining and. educating the ward had exceeded the income of his estate, the ordinary consented to the expenditure of more than the annual profits for these purposes. But a careful examination of these cases will show that the money expended by the guardian in each instance was directly disbursed by him for the ward’s maintenance and education. In other words, the returns showed unequivocally on their faces that the money of the ward was in fact used by the guardian for these identical purposes. These cases, and others like them, have gone quite far enough in holding that a guai’dian will be protected in encroaching upon the corpus of the ward’s estate under these circumstances, and we are not disposed to extend it further. Granting, however, for argument’s sake, that the doctrine of these eases is applicable to a case arising under section 2540 of the code, we are quite certain that an administrator, in order to obtain the protection afforded by this section, must see to it that tbe money is expended properly and judiciously for the minor’s support and education, and for nothing else. He cannot obtain this protection by turning over the minor’s estate in bulk to any other person, upon the idea that so doing is necessary to the minor’s maintenance and 'education, and that the person to whom he turns the estate over will properly dispose of it for this purpose. To sanction such a rule as this would simply put it within the power of an administrator, having in his hands property belonging to a minor, to deliver it to whomsoever he pleased, and thus avoid the responsibility which the law puts upon him. Surely such a thing was never contemplated by the law-making power, or by this court in any of its decisions.

3. But suppose the administrator, though without authority of law, did turn over to the mothers of these children their shares in the estate of James Adams, and can affirmatively show that the children were actually in want and were actually supported or educated out of the means thus furnished; will a court of equity, at the instance of the administrator and the sureties upon his bond, ratify such an appropriation of the children’s property, the same involving, not only the income, but the entire corpus of their shares in the estate? ¥e leave this question open for further investigation.

4. Another question which seems to have cut no figure in the trial now under review, but which may become an important one at the next hearing, is, whether or not an administrator with the will annexed will be protected in what he does under the advice of an attorney at law appointed by the will to see to its probate and execution. As no ruling was made by the court below on this question, we also leave it open, without intimating any opinion concerning it. Judgment reversed.