Huson v. Green

Bleckley, Chief Justice. The bond declared upon in this case was executed on the 4th day of February, 1867, and the amount of the penalty is twelve- hundred dollars. The bond recites that “whereas the said Alfred H. Zachry is this day appointed guardian to Sarah Reed and Loucinda Reed, orphans of Samuel P. Reed, deceased,” and is conditioned to be void “if the said Alfred H. Zachry do well and truly demean himself as guardian aforesaid, agreeably to letters of guardianship bearing even date herewith, and agreeably to law in such case made and provided.” In the absence of further evidence as to the character of the guardianship, and there is no other in the record, it must be assumed that the guardian derived his appointment from the ordinary and that the guardianship was general in its scope, extending both to person and property. The appointment is provided for by §1806, and the bond by §1812 of the code. A part of §1814 reads as follows : “If at any time after the appointment other property shall descend, or come, or be given, or otherwise accrue to the ward, the ordinary may require the guardian to give an additional bond with security in double the amount of such - property, and on his failure to comply, the ordinary may appoint a special guar [724] dian for such property.” It- is contended that by virtue of this provision a general guardian has no legal authority to receive assets which accrue to the ward pending the guardianship, but that the authority and the operation of the bond originally given are confined to property or money which belonged to the ward when the appointment was made and the bond given. In this case the grandfather of the wards died in 1871, and they dei’ived assets from his estate, which their guardian, in that year and subsequent years, received and charged against himself in his returns made as guardian to the ordinary. The contention is that his authority did not extend to these assets, and consequently that his bond did not cover them. This is not sound. “The ordinary may require the guardian to give an additional bond with security.” This is a discretionary power. Moreover, the additional bond, if required, would be cumulative and not exclusive as to these assets. Schouler’s Dom. Rel. p. 550, §367; 4 Field's Briefs, §54. Without some order of discharge, the surety on an existing bond is liable for future default of the principal, though an additional bond be taken. Stewart v. Johnston, 87 Ga. 97. The original bond, not being restricted to any class of assets, would operate as to all alike, no matter when title to them accrued or when they were received, provided they were received whilst the guardianship was on foot and the letters in full force. For any assets so received and afterwards wasted, misapplied or not duly accounted for, the surety on this bond is liable to the extent of the penalty named therein. The case of Poe v. Schley, 16 Ga. 364, has no application ; for in that ease the guardian was appointed by the father’s will, and the authority of such a guardian to receive assets without giving bond and security was then, and still is, restricted to' assets derived from the source of the appointment. Code, §§1804, 1805 ; Acts [725] 1851-2, p. 101. The bond provided for in the case of a testamentary guardian is not an additional bond, but a first bond, and to require it is not discretionary with the ordinary, but he “shall require the same.” The case of Poe v. Schley, supra, was decided correctly on its facts, no matter what view may be taken of the extent of the words, “Whenever any child or children shall have any guardian by statute appointed, or by the deed or will of the father or mother of said child or children.” It' is well known that the phrase “guardian by statute” designates in the English law a guardian appointed by the father’s will. It is not improbable that the words “any guardian by statute appointed” as used in the act of 1851 may simply have been intended as the equivalent of the enumeration following those words, that is “by the deed or will of the father or mother of said child or children.” Eor the act proceeds to require bond and security only in case property, shall be derived from persons other than the parents. If the statute intended to apply to guardians appointed by the ordinary by virtue of the general statute law of the State, it is not likely that property derived from the parents would have been excepted from the requirement to exact bond and security as a condition of receiving it. Why should the ordiuary’s appointment serve to exempt the guardian from giving bond and security as to property derived from the parents any more than as to property derived from others? It was not necessary in Poe v. Schley for the court to construe the statute any further than as it related to a testamentary guardian. And we have seen that the scheme of the code is to require bond and security in the first instance from all general guardians appointed by the ordinary, and to invest the ordinary with discretionary power to require additional bond and security when the estate.of the ward is enlarged by subsequent acquisition no matter from what [726] soui’ce. The code, and not the act of 1851 as it originally stood, governs the case now before us ; for the code was in force when this guardianship originated. See Code of 1863, §§1755, 1756, 1757, 1763, 1765, which are the same in their provisions relating to this subject as the sections above cited from the Code of 1882. The court erred in rejecting evidence and rightly corrected the error by granting a new trial. Judgment affirmed.