Opinion
16938.
FEBRUARY 16, 1950.
Equitable petition. Before Judge Thomas. Ware Superior Court. June 25, 1949.
Randall Evans Jr., for plaintiff in error.
Jones, Jones Sparks, Wilson, Bennett, Pedrick Bennett, Langdale, Smith Tillman, and J. Mack Barnes, contra.
The allegations of the petition failed to state a cause of action for a declaratory judgment to establish the amount, if any, of the petitioner's liability as surety on the bond of a deceased guardian, or for any other equitable relief; and the court erred, in overruling a general demurrer to the petition.
No. 16938. FEBRUARY 16, 1950.
On January 18, 1949, American Surety Company of New York filed in Ware Superior Court, against W. Orrin Lea, a resident of Ware County, and Mrs. Adele Louise Tucker, who was alleged to be a resident of Ware County physically residing in Baldwin County, a petition which alleged substantially the following: In December, 1929, Mrs. Tucker was committed by the Court of Ordinary of Ware County to the Milledgeville State Hospital, and W. W. Sharpe Sr. qualified as her guardian, with the petitioner as surety on his bond. Sharpe acted as guardian until his death in 1939. He left no estate, and there has been no administration thereon. Upon the death of Sharpe, Lea was appointed and still is Mrs. Tucker's qualified successor guardian. Sharpe made annual returns up to the year of his death, which were examined and approved as provided by law, and upon his death the successor guardian took charge of the funds and properties of the guardianship. Nevertheless, there has been no final settlement of the accounts of the deceased guardian either with the ward or with the successor guardian. Sharpe fully and faithfully discharged the duties of his trust. In June, 1947, Mrs. Tucker was discharged from the State Hospital pursuant to a proceeding under Code § 35-237. Since her discharge she has instituted two separate suits against the petitioner, and others in the Superior Court of Baldwin County, alleging numerous devastavits on the part of Sharpe, and seeking to recover a judgment against the petitioner as surety on his bond. Each proceeding terminated by dismissal, one voluntarily by Mrs. Tucker, and the other on demurrer on the ground that Mrs. Tucker, being represented by Lea as her guardian, could not maintain the suit against the petitioner in her own name. Tucker v. American Surety Co. of N. Y., 78 Ga. App. 327. Lea as guardian has not instituted any action against the petitioner on the bond, or sought to obtain a settlement of the accounts of Sharpe, and at the present time there is no action pending wherein the petitioner's liability on the bond can be determined. Mrs. Tucker has also contended, contrary to the facts, that the bond of Sharpe as guardian, signed by the petitioner as surety, is in the penal sum of $40,000 instead of $2000, and she is now claiming a liability on the part of petitioner on the alleged $40,000 bond in an amount substantially in excess of $2000. For some time Mrs. Tucker has claimed that she was fully restored to sanity, and was capable of managing her own affairs, and she has now commenced a proceeding in the Court of Ordinary of Ware County under the act of 1947 (Code, Ann. Supp., § 49-610 (1) et seq.) seeking to have her sanity legally restored; and if she is successful, the effect will be to terminate the guardianship of her person and property now vested in Lea. In the proceeding to have her sanity restored Arnold Parker has been appointed and is acting as her guardian ad litem. The present petition is brought against Lea, as successor guardian, for the purpose of obtaining a declaratory judgment adjudicating the amount, if any, of the petitioner's liability as surety on the bond of Sharpe. While Lea as successor guardian is the only proper person against whom the petitioner can proceed for the purpose of determining its liability as surety on the bond of Sharpe, nevertheless Mrs. Tucker has asserted claims of mismanagement and breach of trust against Lea as successor guardian, and has protested against Lea representing her in the settlement of her accounts with her deceased former guardian, claiming that his personal interests conflict with her own. For that reason, and in view of her claim that she is now sane and capable of managing her estate, and since she is no longer confined in the State Hospital, she should be served with the petition and process in this case, and made a party to this proceeding, to the end that her interests may be fully protected, and that complete final relief may be granted to the petitioner. If the sanity of Mrs. Tucker is legally restored, Lea will nevertheless remain a proper and necessary party to this proceeding for the petitioner to obtain complete relief. While there is no pending proceeding, nevertheless Mrs. Tucker has asserted a claim against Lea, based on his alleged failure to proceed against the petitioner as surety on the bond of Sharpe, and Lea will remain liable to the threat of a suit against him by Mrs. Tucker on that ground. If Mrs. Tucker should proceed and be successful in such claim, Lea will assert a liability over against the petitioner. Therefore the petitioner is threatened with a multiplicity of suits, against which it has no adequate remedy except in equity, where all parties involved can be brought before the court and complete relief can be administered as the equities of the parties may require. For the further reason that Lea as successor guardian actually took charge of the assets of Mrs. Tucker in the hands of Sharpe at the time of his death, Lea, even if he should cease to represent Mrs. Tucker as her guardian, is nevertheless a necessary party to this proceeding, which is brought to obtain a determination of the liability of the petitioner to Mrs. Tucker, and which involves at least in part an accounting of the funds and assets which were possessed by Lea, and which may possibly involve a claim over by the petitioner against Lea. The prayers were: that process issue, directed in terms of law, requiring Mrs. Tucker and Lea as her guardian to appear in court within 30 days after the service of the petition and process upon them and make answer to this petition; that the court determine the liability of the petitioner, if any, as surety on the bond of Sharpe, deceased, as guardian of Mrs. Tucker; that it be declared that the bond of Sharpe, upon which the petitioner is surety, was and is in the amount of $2000; and if it should appear that a bond in the amount of $40,000 was at any time executed, that it be further declared that the $40,000 bond was canceled by judgment of the court of ordinary; and that the $40,000 bond is void and of no effect as between the parties; that, to afford petitioner complete relief, the rights and liabilities as between the petitioner and Lea be determined, whether or not the sanity of Mrs. Tucker be legally restored; and for general relief. The record shows that Arnold Parker was appointed guardian ad litem for Mrs. Tucker in the present proceeding.
Before pleading otherwise, Mrs. Tucker filed various defensive pleadings. She also filed a demurrer to the petition on general and special grounds, and an answer in the nature of a cross-petition, which contained a prayer that, if her special pleas be not sustained, she be afforded appropriate relief in the premises, with proper judgment against Lea; and that the surety on his bond (Saint Paul Mercury Indemnity Company) be made a party defendant; and that liability be established and adjudged against it, with proper judgment against the petitioner for its liability on the bond of Sharpe.
An amendment to Mrs. Tucker's answer averred that, on February 3, 1949, she had a trial in the Court of Ordinary of Ware County, in which it was adjudicated that she was a person of sound mind.
Mrs. Tucker also addressed a petition to the superior court, which stated among other things that, on June 7, 1949, Lea filed a petition and citation in the Court of Ordinary of Ware County, seeking a settlement of rights and liabilities between him as guardian and her as ward; and that, while she did not recognize the validity of the declaratory-judgment action, the same was pending, and that she was being required to defend herself against it. She prayed for an injunction against Lea to prevent his proceeding in the court of ordinary until there was a final termination of the proceeding for declaratory judgment.
General demurrers of the petitioner to Mrs. Tucker's defensive pleadings were sustained and her special pleas were dismissed. The court then overruled Mrs. Tucker's general and special grounds of demurrer. She excepted to each of the above rulings.
This case arose on a petition for a declaratory judgment under Code (Ann. Supp.) § 110-1101 et seq. Mrs. Tucker demurred on the ground, among others, that the allegations contained in the petition did not state facts showing an actual controversy between the parties. A controlling question is whether the remedy of a declaratory judgment, or any other equitable remedy, is available to a surety on the bond of a deceased guardian to obtain an accounting of its liability, if any, as such surety to the ward or to the successor guardian of the ward.
Counsel for the petitioner insist that, under the ruling in Brown v. Lawrence, 204 Ga. 788 ( 51 S.E.2d 651), there is a justiciable controversy because there are interested parties asserting adverse claims upon an accrued state of facts. It was alleged in the petition that the deceased guardian fully and faithfully discharged the duties of his trust, and that the successor guardian had not instituted any action against the petitioner on the bond, or sought to obtain a settlement of the accounts of the deceased guardian. It thus appears that no controversy was shown between the petitioner and the successor guardian. The allegations that the ward, at a time when she was legally insane, and not competent to maintain the same, instituted two separate suits against the petitioner and others — alleging numerous devastavits on the part of the deceased guardian, and seeking to recover a judgment against the petitioner as surety on his bond — are insufficient to show a justiciable controversy, because it appears from the petition that each suit was terminated by dismissal, one voluntarily by the ward, and the other upon demurrer on the ground that the ward, being represented by the successor guardian, could not maintain the suit against the petitioner in her own name. See Tucker v. American Surety Co. of New York, 78 Ga. App. 327 ( 50 S.E.2d 859). Other allegations, that the ward had asserted a claim against the successor guardian, based on his alleged failure to proceed against the petitioner as surety on the bond of the deceased guardian, are insufficient to set forth a justiciable controversy, for the reason that any claim asserted by the ward prior to the time it was adjudicated that her sanity had been legally restored should be disregarded.
A different ruling is not required, as contended, by the Code (Ann. Supp.) § 110-1107 (Ga. L. 1945, pp. 137, 138) which declares: "Without limiting the generality of any of the foregoing provisions any person interested as or through an executor, administrator, trustee, guardian, or other fiduciary, . . in the administration of a trust or of the estate of a decedent, an infant, lunatic, or insolvent, may have a declaration of rights or legal relations in respect thereto and a declaratory judgment . . (c) to determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings." Considered in its entirety, the manifest purpose of the above Code section was to enable a guardian, administrator, or other fiduciary to go into court and seek guidance during the administration of an estate or trust; and the statute does not apply where, as here, the trust has already been terminated by the death of the guardian.
Finally it is insisted that the petitioner is threatened with a multiplicity of suits, against which it has no adequate remedy except in equity, where all parties involved can be brought before the court and complete relief can be administered as the equities of the parties may require. In this connection, counsel for the petitioner state in their brief that unfortunately there is no statute which specifically provides a remedy in behalf of the surety on the bond of a deceased guardian, and insist for that reason equity should take jurisdiction. The petition seeks to avoid a multiplicity of suits by alleging in substance that, if Mrs. Tucker should sue Lea, and if she should recover, and Lea in turn should sue the petitioner, then, based on these suppositions, there would be a multiplicity of suits. There is no pending proceeding by Mrs. Tucker against Lea, and the allegations in the instant petition are too remote to show a right to equitable relief by reason of a threatened multiplicity of suits.
Accordingly, the petition failed to state a cause of action for a declaratory judgment, or for any other equitable relief, and the court erred in overruling the general demurrer to the petition. In view of the above rulings, it becomes unnecessary to pass upon other assignments of error.
Judgment reversed. All the Justices concur.