Griffin v. Suber , 191 Ga. 269 ( 1940 )

Where a will was offered for probate, and a minor over fourteen years of age was served, and a guardian ad litem (being also the natural guardian under bond) was duly appointed, the service on said minor was sufficient. The judge did not err in striking the plea in abatement.

No. 13431. NOVEMBER 29, 1940. W. F. Suber offered for probate the will of W. T. Suber, deceased. An order from the court of ordinary together with a copy of the petition, was served personally on William, Burnette, and J. T. Griffin, minors over fourteen years of age, who were children of a deceased daughter of the testator, and were his heirs at law. Their father C. T. Griffin was appointed guardian ad litem, and accepted the appointment. Their father had already qualified as natural guardian. Pleas in abatement were filed by the minors, and by their father as natural guardian, on the grounds that their father as statutory guardian should have been served, and that service upon the minors was insufficient. They filed also, subject to their pleas in abatement, a caveat. On motion of the propounder the pleas in abatement were stricken, and the will was admitted to probate; to which ruling exceptions pendente lite were filed. On appeal to the superior court a motion to strike the pleas in abatement was sustained. After trial a verdict was returned in favor of the propounder, on which judgment was rendered. The respondents excepted, assigning error on that judgment and on the ruling excepted to pendente lite. Under the acts of 1876 and 1879 (Ga. L. 1876; p. 103; 1878-9, p. 140; Code, § 81-212), provision was made for service of writs, petitions, etc., on minors under and over fourteen years of age, as follows: "If the minor is over 14 years of age, service may be made by delivering to him personally such copy. When the returns of such service are made to the proper court, and order taken to appoint said minor a guardian ad litem, and such guardian ad litem agrees to serve, all of which shall be shown in the proceedings of the court, said minor shall be considered a party to said proceedings." The Code under the chapter dealing with the probate of wills, provides: "If any of the heirs are minors or of unsound mind, guardians ad litem shall be appointed by the court, or the probate shall not be conclusive as to them." § 113-608. Thus it is apparent that the Code itself provides for representation of the minor by a guardian ad litem when the minor is over fourteen years of age, and specifically where a will is to be probated the minor is represented by guardian ad litem. "Whenever a minor shall be interested in any litigation pending in any court in this State, and shall have no guardian, or his interest shall be adverse to that of his guardian, such court may appoint a guardian ad litem for such minor, which guardian shall be responsible to such minor for his conduct in connection with such litigation in the same manner as if he were a regularly qualified guardian." Code, § 49-111. It is true that this section uses the terms "shall have no guardian," in which event the court may appoint a guardian ad litem, but it does not make the appointment of the guardian essential, nor does it indicate that if an existing guardian be not made a party a proceeding would be irregular or void that appointed a guardian ad litem. It may be urged, but it is not decided, that when a suit is filed to which a minor is a party, and in which he may receive funds as the fruit of the litigation, the guardian under bond should be made a party, so that his bond would be responsible for such funds as he might receive. This argument, however, would lose its force where the minor is simply a party to the probate of a will from which he receives no fund. The fund would be paid only to a guardian under bond, if the point were made; and a guardian ad litem would be compelled to give bond before he could receive any fund of the minor. The cases cited by counsel on both sides, although from casual expressions mentioning what was done as a matter of fact, do not indicate a decision of the instant question. Oliver v.McDuffie, 28 Ga. 522; Scott v. Winningham, 79 Ga. 492 (4 S.E. 390); Salter v. Salter, 80 Ga. 178 (4 S.E. 391, 12 Am. St. R. 249); Maryland Casualty Co. v. Lanham,124 Ga. 859 (53 S.E. 395); Douglas v. Johnson, 130 Ga. 472 (60 S.E. 1041); Miller v. Luckey, 132 Ga. 581 (64 S.E. 658); Gorday v. Scott, 137 Ga. 423 (73 S.E. 732);Dougherty v. Fouche, 149 Ga. 608 (101 S.E. 578). In Powell on Actions for Land, 189, § 84, is the following statement: "When the return of service has been made to the court an order shall be taken appointing some one to act as guardian ad litem or the legal guardian may be directed by the court to act in this capacity." The judge did not err in striking the plea. See Code, § 37-1003; Groce v. Field, 13 Ga. 24 (2); Ann. Cas. 1912d 364, note.

Judgment affirmed. All the Justices concur.