Beavers v. Harvey , 102 Ga. 184 ( 1897 )

Cobb, J.

In the case of Harvey v. Miller, 95 Ga. 766, the will which is relied on by the plaintiff’s usee for a recovery in this case was before the court. Justice Atkinson in the opinion uses the following language: “The great purpose designed to be accomplished by the testator being to keep his estate intact until the youngest child attained its majority, and at the same time, out of the estate, to provide a support for the maintenance of them all, it occurs to us that no better plan could have been devised for carrying into effect the real purpose of the testator with respect to his estate than for the chancellor, as he did in this case, to render a decree directing a temporary apportionment of the estate amongst the minors as they each severally attained their majority, that they might severally enjoy each his just proportion until the time when, upon the majority of the youngest child, a final apportionment of the estate could be made.”

Following the principle upon which this decision was based, the plaintiff’s usee was entitled to proceed against his guardian and the sureties on his bond for the ward’s share of the income of the testator’s estate in the guardian’s hands unaccounted for. He also had the right to recover his share of any sum which the guardian by the exercise of proper diligence could have realized as income, and which was lost to the estate on account of the guardian’s neglect. If it should appear at the trial, as it did in the case cited supra, that the existing conditions are such as to still prevent a literal execution of the will, a recovery could be had by the ward for his share of any sum for which the guardian may be liable on account of the corpus of the personalty which came into his hands. The real property having been temporarily divided under the provisions of the decree rendered in the case already cited, such division should be allowed to continue until the youngest child becomes of age, when the final apportionment and division can be had.

In the accounting to be had between the guardian and the ward, proper credit should he allowed for all disbursements regularly and lawfully made by the guardian in behalf of his ward. Judgment reversed.

All the Justices concurring.