Armor v. Moore

Lumpkin, P. J. This was, under the pleadings below mentioned, a contest for the guardianship of the person and property of Henry A. Moore, who had been adjudged incapable of managing his estate, the same consisting of property given to him under the will of his father, Green Moore, which provided that in case Henry A. Moore died without children, this property should revert back to the testator’s estate and be divided amongst his children and grandchildren. An application for the guardianship of the person and property of Henry A. Moore was filed by his nephew, Walter F. Armor. John W. Moore, who was a brother of the former, filed a caveat wherein he prayed that he be appointed guardian of the person and property of Henry A. Moore. Upon the trial in the superior court, [580] on appeal from the court of ordinary, a verdict was returned in favor of the caveator. Armor made a motion for a new trial, to the overruling of which he excepted. The judge, among-other things, gave in charge to the jury section 2518 of the-Civil Code, and added: “ The caveator, if nearest of kin by blood, is to be selected, if otherwise unobjectionable.” The motion, for a new trial alleges that this section was not applicable to the-present case, and that the above-quoted instruction was erroneous. Complaint is also made in the motion, that the judge failed' to instruct the jury as to the weight to be given to the wishes, preferences, and objections of the persons who, as remaindermen, were interested in the estate in controversy. It is-proper to state in this connection, that it appeared that Henry A.- Moore had neither wife nor child, and that several persons,, who, in the event he should die without leaving wife or child,, would be entitled to take as remaindermen, testified that they desired Armor to be appointed guardian. The motion also alleges error in admitting testimony tending to show the amount, character, and condition of the property in question. Another complaint in the motion is, that the judge instructed the jury they must find either for the applicant or the caveator; it being-alleged this was error because, under the law, a stranger might, have been selected as guardian. 1, 2. We think the decision of this court in the case of Johnson v. Kelly, 44 Ga. 485, is conclusive upon the proposition that section 2518 of the Civil Code is applicable to a case like-the present. This section provides, as did section 1799 of the-Code of 1868, which was in force at the time the case just cited was decided, that: “In the appointment of guardians, the-widowed mother shall have the preference, upon complying with the law. Among collaterals applying for the guardianship, the nearest of kin by ’blood, if otherwise unobjectionable, shall be preferred — males being preferred to females. The-ordinary, however, in every case may exercise his discretion according to the circumstances, and, if necessary, grant the letters to a stranger in blood.” The contest in that case was for the guardianship of the person of an idiotic colored man, between a white person and the sister of this man, and the; [581] proof showed that both were unobj ectionable. The court charged u that other things being equal, relations were to be preferred,” and it was held that this charge did not correctly present the law to the jury, for the reason that the sister, being the nearest of kin and unobjectionable, was absolutely entitled to the guardianship without reference to other considerations. Plainly, then, this decision is a complete reply to the argument made here in behalf of the plaintiff in error, that the above-quoted section applies only to contests over the guardianship of minors. It was further insisted, however, that this section ought not to have been made controlling in this case,.because the contest was really as to the guardianship of the property and had little or no bearing upon the custody of the ward’s person. The answer to this is, that the application was in terms for the guardianship of both the person and property of Henry A. Moore. We are therefore entirely satisfied that the charges complained of were pertinent and proper. Nor did the court err in failing to charge concerning the preferences of the witnesses who, in the contingency specified, would be entitled to take, as remaindermen, the property devised and bequeathed to Henry A. Moore under the will of his father. If John W. Moore ivas a proper person to serve as guardian, he was entitled to the guardianship irrespective of anybody’s wishes, he being unquestionably the nearest of kin. 3. There was no error in admitting the testimony referred to in the third headnote. In determining whether or not John W. Moore was “unobjectionable,” — that is, was a suitable person to be appointed the guardian of his brother, — the amount, -character and condition of the latter’s estate were pertinent matters of inquiry. A man might be entirely qualified to manage some estates, and not by any means capable of properly managing an estate of an entirely different character and amount. The court therefore properly allowed this evidence to go to the jury, as throwing light upon one of the questions at issue. 4. We are unable to perceive any error in instructing the jury that they should find in favor of one or the other of the contestants. While the law does provide that the ordinary may select a stranger in blood, this does not mean that a jury trying [582] 'a case of this kind on appeal can arbitrarily find in favor of the appointment of some person as guardian whose name in this connection is not suggested in either the pleadings or the evidence. Moreover, if the jury were warranted in finding against Armor’s application, it would seem to be no concern of his whether the appointment went to Moore or to some other person. Judgment affirmed. All the Justices concurring, except Lewis, J., disqualified.