Wynn v. Bryce

Jackson, Judge. Bryce was appointed guardian of his’ wife in place of ’ Slowman Wynn, the former guardian, and cited the latter for settlement before the ordinary. From the judgment of the ordinary an appeal was taken to the superior court. The matters in dispute in the first guardian’s account were referred to an auditor, who reported a certain sum due, and [530] to this report two exceptions were taken, which were referred to the judge without a jury, who decided against both and in favor of the auditor’s report; and to the decision of the judge sustaining the report the defendant excepted, and the case is thus brought before us. 1. The first exception is to the refusal of the auditor to allow the guardian $72.00 expenses for sending his ward, under care of his son, to South Carolina to an aunt of hers. The reason given for so sending her out of the state was the fact that she wished to marry, at fifteen years of age, a man disapproved of by the guardian; but no grounds or reasons of opposing her marriage with 7mn are given. We doubt the power of a guardian to send a ward, always under charge of the court of chancery, beyond its jurisdiction. At all events, we will not control the auditor and judge in refusing to allow the charge, unless other good reasons, above the whim and capi’ice of the guardian, or the age of the ward ■ — fifteen—or the fact that there was no female in his home, were assigned for sending her out of the state. It seems, from a report of a branch of this controversy, when here before — 50 Ga., 332 — that the present guardian and husband of the ward, was the contemplated husband objected to by the former guardian, and that the purpose of her removal to South Carolina was thwarted anyhow, and produced no fruit as desired by the guardian. It would seem wrong to make the ward pay for a trip out of the state to defeat a marriage which was at last consummated, and which has proved happy, so far as we know from this record. 2. The second exception is, that the auditor refused to allow a charge of the guardian of $100.00, which he paid to a creditor of the ward’s father and testator, upon the following state of facts: testator died, leaving property in Georgia and South Carolina, two executors, one in each state, and four legatees, among whom his property was equally divided. Three of his children were in South Carolina and this ward in Georgia, and the estate was divided, under the will, equally between them. The Georgia executor and the [531] guardian of the Georgia minor were the same person — the present defendant — who turned over to himself, as guardian, the share of this ward. After this had been done, he took up the claim of a creditor of the testator on the estate for $100.00, evidenced by two promissory notes of $50.00 each, and charged his ward therewith. This creditor was a Georgia creditor, but gave no notice of his debt until the estate was distributed. The ordinary allowed the guardian this debt, which he paid out of the ward’s estate, but the auditor and the judge cut it down to $25.00, which is her pro rcuta share. So that the question made is this: was the ward’s share of her father’s estate, which she had received from the executor by her guardian, liable for more than her pro rata share of the debt against her father, under the facts above stated? Could the creditor have compelled the guardian to pay the whole debt by filing a bill to subject this property, already distributed, to its payment, when his own laches in failing to present his claim, or give notice thereof, had caused the estate to be divided among the legatees ? If equity would have compelled the guardian to do so, then he was fight to pay the one hundred dollars, and ought to have credit therefor; but if equity would have made him only pay one fourth — her pro rata — out of his ward’s share in his hands as guardian, then he is protected only to that extent. Upon principle, it would seem that, as his own default prevented the whole Georgia estate of the testator from being liable for the debt, and his laches thus would have caused, if the whole debt were paid, this ward to pay four times as much as she would otherwise, that equity would only make her pay the same fourth — only her pro rata liability. And so the Code distinctly declares. Code, § 2167. The principle there- declared is, that, “ if the executor has assented to the legacies, and the legatees are in possession, after exhausting the assets in the hands of the executor, the creditor may proceed against eacih legatee for his pro rata share.” Here the executor had turned over to the legatee, [532] or her guardian, the property, and it was in her possession. It is true that if the assets had not been turned over to the ward, but had remained in the hands of the executor, then they would have been liable, though the rest of the estate had been distributed to others, and all that remained would have belonged to one when turned over, as ruled in 26 Ga., 550. But when it is turned over, the' title passes, and the liability is only pro rata. So in regard to administrators, the same rule prevails. Code, 2531. That declares: “If the‘estate has been distributed to the heirs at law without notice of an existing debt, the creditor may compel them to contribute pro rata to the payment of his debt.” The only point really ruled in 20 Ga., 145, is that a judgment against the administrator, subsequent to distribution, cannot reach property distributed, but it is said there that equity will compel pro rata contribution on a proper bill, and the insolvency of a part of the heirs would be considered in the contribution of those solvent ; that is, the solvent heirs would have to make up to the creditor not only their own pro rata, but that of those insolvent. But the latter remark was obiter. However, there is no insolvency shown here, and we rule nothing on that point. It is enough to say that, in this case, the laches of the creditor caused all the difficulty, and that he ought to have suffered rather than this ward; and as this guardian assumed the responsibility of paying the creditor without suit, he must stand in his shoes; having made himself judge, he judged at his peril, and has lost. The judgment of the court below follows the Code in section 2467, in case of legacies assented to, and the right of creditors to follow them, and it must be affirmed.