Weekes v. Fuller

Quillian, Justice. The motion to dismiss the writ of error in the Court of Appeals was properly overruled by that court for three reasons. The first is that the judgment of the Ordinary of Fulton. County appointing Frank Fuller the administrator of Mrs. Abner’s estate, not alleged to be void, could not be collaterally attacked by the motion to dismiss the writ of error. Code §§ 110-708, 110-701; Tucker v. Harris, 13 Ga. 1 (10) (58 AD 488); Wash v. Dickson, 147 Ga. 540 (1) (94 SE 1009); Marshall v. Marthin, 192 Ga. 613 (1) (15 SE2d 861); Mitchell v. Arnall, 203 Ga. 384 (4) (47 SE2d 258). Secondly, according to the record, the Judge of DeKalb Superior Court, before either the motion for new trial or the motion for judgment notwithstanding the verdict was disposed of, entered a judgment on August 25, 1959, making Frank Fuller, the administrator of Mrs. Abner, a party to the ease in her stead and no objection was made or exception taken to that judgment. Finally, under the provisions of the act of 1947 (Ga. L. 1947, pp. 1174, 1176; Code Ann. § 49-610.6), the effect of a judgment by which an incompetent is found to be restored to sanity is to terminate the relationship of guardian and ward between the person restored to sanity and his guardian, although the guard [518] ian may thereafter be required to account for the assets of the ward received by him. In such a situation, if the ward, subsequently to being restored to sanity, dies, the former guardian is not entitled to administer the ward’s estate. Morgan v. Woods, 69 Ga. 599 (2). See Strickland v. Peacock, 209 Ga. 773 (77 SE2d 14). In the case of Rivers v. Cole Corp., 209 Ga. 406 (73 SE2d 196), and similar cases, it is held that a check bearing the notation “account paid in full,” or words of the same import, when accepted and cashed by the payee constitutes a receipt in full of the demand for which it is given. The holding of the Court of Appeals in the present case that this rule is not applicable in a settlement beween guardian and.ward is error. It was necessary to grant the certiorari in order that the conclusion be corrected, and to prevent confusion as to the application of the rule in the future. The receipt in the form of a check upon which appears the fact that it represents the acknowledgment of a full accounting for the ward’s funds has the same legal effect as a receipt in any other form. However, the general rule applied in Rivers v. Cole Corp., supra, is not conclusive in the present case since this general rule is limited by the express provisions pertaining to the fiduciary relationship of guardian and ward under Code § 49-312. The guardian testified on direct examination as follows: “Mr. Munday came to my office in June, 1952, to discuss the estate. I sent Mr. Munday a copy of my June, 1952, annual return which reflected this expenditure of $2,000 to Walter Baker as Administrator of Miss York’s estate for the payment of those expenses. I wrote Mr. Munday and told him of the suit that had been filed against me and that judgment had been obtained and I paid the judgment. The judgment had still not been vacated or declared void because of the failure to serve Mrs. Abner at the State Hopsital. As her attorney, as Mr. Mundy [sic] was Mrs. Abner’s attorney, I gave a full disclosure to him of all the facts and circumstances of the case, all up until July 24. July 24 Mrs. Abner was legally restored to sanity by order of the Polk County Court. . . On July 30, 1952, I paid to Mrs. Abner; she came to my office; she knew the full circum [519] stances of all facts relative to the case and there I gave to her a check for $532 and some odd dollars.” The majority of the court is of the opinion that the evidence quoted made an issue of fact for the determination by the jury as to whether the requirements of Code § 49-312 were met and the settlement between the guardian and ward was “after full exhibit of all the guardian’s accounts and with full knowledge by the ward of his legal rights.” Hence, the Court of Appeals erred in holding that the trial judge erroneously overruled the motion' made by the wárd’s administrator for judgment notwithstanding the verdict. The court cites the rule well expressed in Adams v. Reviere, 59 Ga. 793, and quoted in Jordan v. Harber, 172 Ga. 139, 159 (157 SE 652): “On a plea by the guardian that she had settled with her ward, the question is not whether the jury believed that the ward had received in the settlement as much as she was entitled to receive from her guardian; but the issue is, was she fully cognizant of the condition of the estate and of its management by her guardian, and did she settle with full knowledge thereof, and without mistake on her part, or imposition or fraud on the part of the guardian. If she did so settle, and at the date of the settlement was of full age, and acted with her eyes open to the facts of the case, she will be concluded by the settlement, though she seeks to open it in less than four years from its date; but if she was ignorant of the facts, or mistaken, or defrauded, she will not be concluded.” Judgment reversed. All the Justices concur, except Head, P.J., and Quillian, J., who dissent.