Perkins v. Dyer , 6 Ga. 401 ( 1849 )

By the Court.

Lumpkin, J.

delivering the opinion.

We are not willing to control the discretion of the Chancellor in this case, seeing that it has been so beneficially exercised in behalf of infant mortgagees, who are incapable of protecting themselves.

[1.] Had Sarah Backus been duly appointed, by the proper Court, guardian of the person and estate of her children, then she would have had the legal control over the mortgage lien which she undertook to release; and, even as it is, had the money been wanting for the purposes of the trust, for making more advantageous investments, or for the maintenance and education of her wards, or for any other purpose whatever, advantageous to her minor children, this release to the purchaser might have been sanctioned and protected.

[2.] But instead of exercising this usurped power fairly and faithfully, and in conformity with her duty and the interest of her orphans, the bill itself alleges, that it was done falsely and fraudulently, and for the purpose of assisting Dyer. Under these circumstances, it is better that the purchaser at Sheriff’s sale should suffer, than that those heirs should be deprived of the remnant of their .inheritance, especially :as the natural guardian in this case has failed to give security to protect these infant cestui que trusts against this act of gross mismanagement.

[3.] It may be well enough to remark, that guardians by nature, at Common Law, had neither possession nor control of the estate of the ward, whether real or personal. 1 John. Ch. Rep. 3. 3 Pick. Rep. 213. And it is asserted by tbe late Ch. J. Swift, of Connecticut, that a mother is never considered as guardian of her children, unless it he of nursed children until the age of seven years. 1 Swift’s Dig. 50. And whether considered as guardian by nature or for nurture, she has no control over the estate of her infant children. Kline vs. Beebe, 6 Conn. 494.

Had the mother given bond, as required by law, for the faithful and judicious discharge of her trust, the direction given to this case might have been different. As it is, the decree below must be affirmed.