Means v. American Bonding Co.

Bloodworth, J. (After stating the facts). The court did not err either in overruling the demurrer or in failing to submit the case to the jury and give the instructions to them requested by counsel for the defendant, or in directing a verdict for the plaintiff. Section 3053 of the Civil Code (1910), is in part as follows: “The surety of any guardian on his bond, or, if dead, his representative, may at any time make complaint to the ordinary of any misconduct of his principal in the discharge of his trust, or for any other reason show his desire to be relieved as surety; thereupon the ordinary shall cite the guardian to appear at a regular term of the court, and show cause why such surety shall not be discharged; and upon hearing the parties and their evidence, the ordinary may, at his discretion, pass an order discharging such surety from all future liability, and requiring such guardian to give new and sufficient security or be discharged from his trust; such new sureties shall be liable for past as well as future waste or misconduct of the guardian. And such discharged surety shall be relieved only from the time the new security shall be given.” Under this statute, it will be seen, a surety on a guardian’s bond can obtain relief in two distinct contingencies; first, in ease of misconduct of the guardian in the discharge of his trust; second, when for any other reason the surety desires to be relieved. In National Surety Co. v. Morris, 111 Ga. 308 (36 S. E. 690), Presiding Justice Samuel Lumpkin said: “The words, ‘any misconduct of his principal in the discharge of his trust,’ are obviously exhaustive of all acts, whether of commission or omission, which pertain to the guardian’s mismanagement of the estate, or the non-performance of any of the duties devolving upon him in his office. It follows that the words, ‘any other reason,’ which the surety may allege as constituting the basis of ‘his desire to be relieved’ from the bond, must relate to some other ground or grounds of relief not ejusdem generis with those which arise from the guardian’s official misconduct. "Want of personal integrity, lack [458] of business capacity, extravagant or reckless living, indulgence in vicious or immoral habits, criminality, and scores of other things which might be suggested, would certainly afford good reasons for a desire to be relieved as surety.’ ” Granting that the estate of her ward had not suffered by her conduct in its management, still we think her conduct as shown by the record was embraced in the “scores of other things” which Presiding Justice Lumpkin says “would certainly afford good reasons for a desire to be relieved as surety.” In Rogers v. Dickey, 117 Ga. 819 (45 S. E. 71), the 3d headnote is as follows: “Even for the benefit of the.beneficiaries a fiduciary can not hazard the trust fund in speculation, business, or any form of investment not authorized by the deed of trust, the statute, or an order of a court of competent jurisdiction.” See also Venable v. Howard, 68 Ga. 167; Crawford v. Tribble, 69 Ga. 519. Judgment affirmed. Broyles, P. J., and Stephens, J., concur.