Opinion
21739.
ARGUED SEPTEMBER 10, 1962.
DECIDED OCTOBER 22, 1962. REHEARING DENIED NOVEMBER 8, 1962.
Equitable petition. Clarke Superior Court. Before Judge Cobb.
Rupert A. Brown, for plaintiff in error.
Stephens, Fortson, Bentley Griffin, Edwin Fortson, contra.
1. While a mother may by will appoint guardians for property which she devises to her minor child, and if she is the surviving parent may appoint guardians for the person of her minor child, there is no evidence that an effective appointment was made because the record fails to show the age of the child or anything from which it may be calculated and fails to show whether or not the mother was the surviving parent.
2. (a) The agreement as to the rental of the house is not sufficiently definite as to time to be enforceable against the parties.
(b) Plaintiff having introduced evidence supporting the allegations of her petition as to her right to restrain defendants from collecting the rents from the house, some of the relief prayed, it was error for the trial court to grant a nonsuit.
ARGUED SEPTEMBER 10, 1962 — DECIDED OCTOBER 22, 1962 — REHEARING DENIED NOVEMBER 8, 1962.
The judgment of the trial court granting a nonsuit and dismissing the petition is assigned as error. The petition of Elsie Lay Adams alleges that her brothers James Lay and Harold Lay, individually and as co-executors of their mother's estate, are indebted to plaintiff in the sum of $2,605.85 or other sums; that their mother's will requires defendants to pay plaintiff $100 per month and gives plaintiff a life estate in a certain house and property; that on or about August 27, 1957, defendants had plaintiff committed to Milledgeville State Hospital where she remained until on or about July 13, 1959; that while in the hospital defendants rented the house for $150 per month, for which rents defendants accounted to plaintiff after her release, but that during the time plaintiff was in the hospital defendants did not pay her the $100 per month due her under the will; that on July 29, 1959, plaintiff entered into a written agreement with defendants that they would rent the house for $150 a month, paying plaintiff $100 and retaining $50 to pay for insurance, taxes and normal upkeep; that defendants have paid plaintiff $100 per month from the rents up to the present time along with the $100 per month due under their mother's will, from July 29, 1960; that plaintiff notified defendants that she was canceling the agreement of July 29, 1959, and notified the tenant to pay all future rents directly to plaintiff; that because plaintiff has married she desires to occupy the house at the expiration of the present tenant's lease; that defendants have refused to stop collecting the rents and will continue to do so unless restrained; that defendants owe plaintiff an accounting in the amount of $100 per month from August 27, 1957, to July 29, 1959, the period during which plaintiff was in the hospital, and further in the amount of $50 per month retained by defendants from the $150 rental received, from August 1959 to date of final accounting. Plaintiff prays an accounting for the sums due and that defendants be restrained from collecting the rents from the house.
1. Plaintiff introduced into evidence her mother's will, item 8 of which provides as follows: "I appoint James William Lay and Harold Lay as guardian of the person and property of Elsie Lay to manage the same as they see fit, give her what money they think necessary; and in the event that it becomes necessary for her care, they may at their discretion sell the property at 1751 South Lumpkin Street and use it for her necessary expenses."
If this provision of plaintiff's mother's will is effective, the court was correct in granting a nonsuit because the plaintiff would have established for the defendants a complete defense to this action in that defendants as testamentary guardians of the person and property of plaintiff would be entitled to manage plaintiff's property as they see fit, giving her what money they think necessary, and plaintiff would not be, as she alleged, entitled to demand of defendants a particular sum of money or the rents from or possession of the house. Ables v. Motor Contract Co., 200 Ga. 30 (1) ( 36 S.E.2d 148).
The effectiveness of the provisions depends upon the answer to two questions: (1) May a mother appoint a testamentary guardian for the person and property of her daughter and, if so, (2) is there evidence in the record to show that an effective appointment was made?
The law in effect at the time of the mother's death, the effective date of the will, determines whether or not she had the power to appoint plaintiff's brothers testamentary guardians of plaintiff's person and property. Sutton v. Chenault, 18 Ga. 1, 4; Blanchard v. Gilmore, 208 Ga. 846, 848 ( 69 S.E.2d 753). In 1956, the year of the mother's death, Ga. L. 1943, pp. 396-97 ( Code Ann. § 49-103), provided that every parent could by will appoint guardians for the property of his children, and that if one of the parents was dead, the surviving parent could appoint guardians for the person of his or her minor children. The act uses the word "children" in reference to the appointment of guardians for property and the words "minor children" in reference to the appointment of guardians for their persons. We do not think, however, that the General Assembly by the inclusion of the word "minor" at one place and its exclusion at the other intended to say that a parent might by his will appoint a guardian for the property of his children who had reached their majority. Therefore, we construe the act as providing for the appointment of guardians for the persons and/or property of minor children.
Under the act, defendants' authority as testamentary guardians of plaintiff's property would have come into existence only if, on the effective date of the will, the mother's death, plaintiff was a minor, and if such authority came into existence it would continue only so long as plaintiff had not reached her majority. Their authority as guardians of her person would likewise depend upon plaintiff's age, and would be further dependent upon whether or not plaintiff's father was alive at the time of her mother's death because only a surviving parent may appoint a guardian of the person of his or her minor child. Plaintiff introduced no evidence as to her age, or any evidence from which this court can calculate her age, and she introduced no evidence as to whether or not her mother was her surviving parent. Therefore there was no evidence before the trial court that the appointment was effective and it would have been error for the trial court to grant a nonsuit based on plaintiff's introduction into evidence of item 8 of her mother's will.
2. Plaintiff introduced into evidence item 4 of her mother's will giving plaintiff a house and lot for life, and the written agreement between plaintiff and defendants as to the rental of the house by defendants for plaintiff. The agreement fails to specify its duration. We cannot ascertain the period of time during which the parties intended for defendants to rent the house for plaintiff. The agreement is not sufficiently definite as to time to be enforceable against the parties. Pepsi-Cola Co. v. Wright, 187 Ga. 723, 727 ( 2 S.E.2d 73).
Plaintiff having introduced evidence supporting the allegations of her mother's petition as to her right to restrain defendants from collecting the rents from the house, some of the relief sought, it was error for the trial court to grant a nonsuit. Smith v. Faulk, 171 Ga. 616 (2) ( 156 S.E. 185); Clark v. Bandy, 196 Ga. 546 ( 27 S.E.2d 17); McGruder v. McGruder, 215 Ga. 716 ( 113 S.E.2d 119).
Judgment reversed. All the Justices concur.