Little v. West , 145 Ga. 563 ( 1916 )

Hill, J.

(After stating the foregoing facts.)

1-2. Headnotes 1 and 2 require no elaboration.

3. Exception is taken to the following charge of the court: “If that is not true, if this petition for the sale was for the support, maintenance, and education, or either one of them, of this plaintiff, or if she requested her guardian to apply to have this property sold for that purpose, why, she could not recover, and the sale would be valid.” It is contended that this excerpt is error, for the reason that a request by the ward for her guardian to sell real estate for her support, maintenance, and education would not justify such sale, unless it was in fact necessary for that purpose. There is nothing that might relieve from error this alternative charge that the plaintiff could not recover, and the sale would be valid, if it was for her support, maintenance, and education, “or if she requested her guardian to apply to have this property sold for that purpose.” Outside of the presumption arising in favor of the ordinary’s order, that the necessary things had been shown to authorize it, the defendant introduced no evidence showing the necessity for the sale; and it rests on the letter written by her in 1908 (which was before his appointment as guardian), in which there was some mention of the need of certain funds, and that she needed a sum of money he had on hand as administrator of her mother’s estate. She also stated in her evidence that she had been trying to get him to sell for several years, as she did not expect to live in Atlanta again, but did not refer to any special need. This was the only evidence on the subject; and with this evidence alone before the jury, the alternative charge that if there was a real necessity, or she represented there was a necessity for the sale for the purpose of support, etc., is reversible error. That is not a correct statement of the law, because the mere fact that a minor represents to his guardian that it is necessary to have money for clothes, etc., will not per se make it a necessity. It might operate on the question of good faith; or if she represented there were such necessities, and he acted on these representations in good faith, they might estop her from denying that the necessities in fact existed. But the charge to the effect that if she simply requested the guardian to make a sale for the purposes of supplying necessities, the sale would be valid, is not a sound statement of the law, and this charge may have caused grave injury.

Primarily the income, and not the corpus, of the property is to be resorted to for the purpose of making repairs, or meeting necessary expenses of the property. Possibly the public burdens, such as taxes or street improvements, and the like, might authorize a sale for their payment, though generally this is coupled with the reinvestment of the surplus, where the application is made to the judge of the superior court. Nor is the question now involved as to whether, if a guardian bona fide expend his own money in betterments which permanently improve the property and increase its rental value, this might furnish an equitable right of reimbursement from rents. Relatively to the corpus of the property, a guardian is not authorized to sell or encumber it for the purpose of erecting permanent improvements on it, or, if he erects permanent improvements on it with his own money, to obtain an order of the ordinary to sell it to reimburse him. The purposes for which an ordinary may order an encroachment on the corpus of a minor’s property are stated in the Civil Code, §§ 3060, 3064-3066, and these do not include a desire on the part of the guardian to build additional houses, or to make permanent improvements or betterments. It is contended that what the ordinary might originally allow he might subsequently ratify or confirm, by confirming the returns of the guardian made to him. There are two defects in this suggestion. The first is, that the record in this case does not show any approval of the annual returns of the guardian, except such as may have arisen impliedly from the grant of letters dismissory; and, in the second place, what the ordinary could not originally allow he could not make good by subsequent approval of unauthorized conduct. Of course, the judgment of dismissal of the guardian in this case is a final judgment, and includes anything back of it, unless it can be opened for fraud in its procurement. The judgment granting letters dismissory to the guardian is a bar to any contention as to an accounting back of it, unless it is opened; but if it is opened so that an accounting can take place, then the question of what items are proper to be allowed arises.

The present case furnishes an apt illustration of the impropriety of allowing a guardian to charge the corpus of the estate except for the purposes permitted by the statute. He has charged the ward’s estate with $734.85, exclusive of certain interest charged by him, which he alleges was due to a firm of which he was a member, for making improvements on the lot belonging to his ward, which was subsequently sold for $850. Thus an $850 lot, taking its value to be what it brought at the sale, has been encumbered with a debt for $734.85 for its improvement, leaving only the difference (not taking into account the charges made by the guardian for interest) for the owner of the land with the improvement on it.

The charge of the court, in some respects, was not in accord with what has been said above. There were numerous other grounds of exceptions to charges and refusals to charge, not included in the above discussion. Whether the rulings of the court in all respects weré accurate or not as to the matters not dealt with, they do not present reversible error for any of the reasons assigned in the grounds of the motion for a new trial.

Judgment reversed.

All the Justices concur.