Ocmulgee River Lumber Co. v. Appleby , 136 Ga. 26 ( 1911 )

Beck, J.

(After stating the facts.) Under the case as presented in this record, the plaintiffs were not entitled to maintain their petition if the order granted upon the application of T. P. Wilcox, as guardian ivas not invalid- for want of authority upon the part of the court to grant such an order to tire guardian of a lunatic, or for want of proper service of the application to sell.

1. The Civil Code (1895), § 2545 (Civil Code (1910), § 3064), provides, that, “By order, in term or vacation, of the judge of the superior court of the county of the guardian’s appointment, any guardian may sell the whole or any part of the estate of their wards, for reinvestment, upon such terms and at such time and place as said judge may order.” If the' application under consideration in this case and the proceedings had thereupon had involved the question of sale, for reinvestment, by the guardian of a minor, no question could have arisen as to the validity of the order, in case there was no failure to serve the proper parties as required by law; and it seems that the provisions of § 2571 (Civil Code (1910), § 3090), are sufficiently broad to cover the case of an order granted upon similar proceedings to sell, for reinvestment, obtained by the guardian of a lunatic. The section last referred to provides as follows:. “Guardians so appointed shall take the same oath and-give a like bond with guardians of minors, and their powers, duties, and liabilities shall be the same, and be exercised under the same rules and regulations.” In enacting the law in reference to the poAvers and duties of a guardian for a lunatic the legislature made no other proAdsion AAdrereb}', in case the lunatic should haAre an estate aaIucIi produced no income, the same might be converted into an estate producing an income, than by making the provision' contained in the code section last quoted. Certainly some'such power should be-vested in the guardian for a lunatic, because in a large number of casks proper provision for a lunatic could'not be made except by the exercise of just such a power, under the safeguards which the law has thrown around sales for reinvestment for guardians. To make the provisions of § 2545. applicable to guardians for lunatics can not be considered as giving to the provisions of § 2571 any other meaning than the terms thereof plainly import.

2. While we have held above that the provisions of § 2545 are applicable to guardians of lunatics, we think that all the safeguards and checks which are provided for the guardian who is seeking to sell the estate of his minor ward should also be held to be applicable to the guardian of a lunatic, seeking to sell, for reinvestment, the estate of a lunatic; and this includes the requirement that service upon the lunatic shall be made in the same way, the circumstances being the same, as upon a minor. That is, if the ward, a lunatic, is under the age of 14 years, service on the duly appointed guardián ad litem will be sufficient, without personal sendee upon the lunatic; but in ease the lunatic is over 14 years of age, service should be perfected as service,upon a minor ward, by serving him personally. In the present case there is nothing in the record to show whether the lunatic was over or under the age of 14 3rears. -And inasmuch as it is the duty of the judge to investigate the facts involved in the application to sell, it should be presumed that service upon the guardian ad litem of the application to sell was sufficient, and, as the lunatic was not-served personally, that he was not of ’such an age as to require him to be so served; and the defendants in this case, who derive title through the order to sell for reinvestment, should be given the benefit of that presumption, in the absence of proof to the contrary. If, however, at the final trial proof should show that the lunatic had attained the age of 14 years, then personal service upon the lunatic should be shown; in the absence of which the order for the sale of his estate for the purpose of reinvestment would be invalid. But so far as appears from the record .the order for the sale could not be held to be invalid,.either for want of jurisdiction in the court to grant it, or for a want of due service of the application for the sale; and that being true under the uncontroverted evidence in the case, the defendants, in doing the acts alleged in the petition to constitute a trespass, were acting within their legal rights, and the injunction should not have been granted.

It is not necessary now to decide the question as to whether Mrs. Myrtle Wilcox received the full value of the timber privileges claimed by the defendants in this case and would be estopped from setting up a claim adverse to the defendants, and whether- or not the plaintiffs, who derived title through her, had such notice of the facts upon which the defense of estoppel is based as would operate to estop them also from maintaining this bill in case, it should appear that the order obtained by the guardian for the lunatic for the sale of his ward’s estate was invalid. That question may be left to be more fully investigated at the' final hearing.

Judgment reversed.

All the Justices concur.