Hooks v. Fidelity & Deposit Co. , 135 Ga. 396 ( 1910 )

Beck, J.

While there was uncontroverted evidence in this ease showing that Hooks as guardian had failed in many respects to comply with his duty in regard to managing the estate of his wards and making his returns, and that he had not complied. with the stipulations and agreements made by him in his application to the surety company, we do not think that-these facts would authorize the relief sought in this,case and which was granted in the decree rendered. On the contrary, a verdict in favor of the defendant should have been directed under the testimony submitted on the trial. The company had been discharged as surety on the guardian’s bond of Hooks in 1908; and while it does'not directly appear from the evidence that .other sureties had been substituted in lieu, of the surety discharged, it does appear that Hooks was continued in his office as guardian, that he made his returns as such subsequently to ■ the discharge of the petitioner as surety, and that these returns had been examined by the ordinary, found correct, and accepted by him; and the presumption is that the law had been complied with and that new sureties had been substituted on the bond. The discharged surety would not be liable for any future acts of devastavit on the part of the guardian; for such acts upon the part of the guardian prior to its discharge it was secondarily liable, the new surety being primarily liable; and the new surety was liable solely for all future acts of devastavit. After the discharge of the company as surety, its right to 'interfere with or in any way direct or hamper the guardian’s administration of the estate of his wards was at an end; and the right to have the court interfere for the purpose of controlling the guardian in the discharge of his duties as such, or for the purpose of removing him from his trust, belonged, not to the surety that had been discharged, but to the substituted surety or to the wards. Why should the released surety be now permitted to interfere with the guardian in the management of the property of the ward ? As said above, while the outgoing surety and the new surety are both liable for any past devastavit, as between the two sureties the last one is primarily liable for any past devastavit and solely liable for any future devastavit. In the case of Snow v. Brown, 100 Ga. 117 (28 S. E. 77), it is said: “It is clearly the purpose of the statute to release the outgoing surety as far as possible. It is obvious that, as between himself and the obligee of the bond, he can not be released from liabilities springing from breaches of the bond occurring before his release; but whenever such circumstances exist as will allow him to be released from further liability'', lie is entitled to as full protection as is obtainable at the time of his release. The privilege to the guardian to continue his trust by giving another bond and'surety has the effect to postpone the right of the first surety to have an accounting from his principal, and thus possibly deprive him of means and measures of . protection afterwards lost. The original bond being, presumably at least, ample to protect the obligee thereof for all devastavit occurring while it is of force, it could not be said that it was the purpose of the'statute, in making the second surety liable for past waste, to alone protect the interests of the obligee of the respective bonds, but the principal object sought to be accomplished by this retroactive feature of the second bond is to afford to the released surety as much indemnity as possible, in view of the disadvantages to him attendant upon the postponing of his right to have his principal brought to an accounting.” We are of the opinion that the guardian, unless removed for some legal cause, should be permitted, unhampered by any interference on the part of the outgoing surety, to discharge the duties pertaining to his office of guardian; and if he should be guilty of any devastavit, the last surety on the bond will be liable. And the plaintiff in this case has no need to apprehend danger or loss from any act of the guardian except those which took place prior to its discharge; and relatively to the acts of mismanagement or any devastavit committed by the guardian prior to that discharge, no relief could be rendered under the petition in this ease.

Judgment reversed.

All the Justices concur.