Opinion
21758.
SUBMITTED SEPTEMBER 11, 1962.
DECIDED OCTOBER 4, 1962. REHEARING DENIED OCTOBER 22, 1962.
Equitable petition. Gwinnett Superior Court. Before Judge Pittard.
Guy D. Jackson, Sr., D. B. Phillips, for plaintiff in error.
Webb Fowler, Telford, Wayne Smith, contra.
1. This is not a suit in which the right of recovery is based upon the plaintiff having furnished necessaries upon the failure of the guardian to supply the same, for the reason that, while the services rendered were in the category of necessaries and the renovation of the buildings on the ward's premises may have been, it clearly appears from the averments of the petition that the services were rendered at the behest of the guardian and the money advanced by the plaintiff was furnished with the approval and at the direction of the guardian. In this connection observe the requirements of Code §§ 20-201 and 20-206. Mauldin v. Southern S. B. Univ., 126 Ga. 681 (1) ( 55 S.E. 922, 8 AC 130); Nicholson v. Spencer, 11 Ga. 607; McAllister v. Gatlin, 3 Ga. App. 731 (1) ( 60 S.E. 355).
2. Where, as in the instant case, a will appointing a testamentary guardian of an incompetent to whom a life estate in lands is devised only confers upon the guardian authority to manage the lands for the benefit of the ward, he can not without the approval of the ordinary contract a debt binding upon the ward's estate for the services of another in caring for the ward. Code Ann. § 49-213 (Ga. L. 1866, p. 87; Ga. L. 1958, pp. 673, 678); Fidelity Deposit Co. v. Rich, 122 Ga. 506 (1) ( 50 S.E. 338); Rich Bros. v. Fidelity Deposit Co., 126 Ga. 466 ( 55 S.E. 336).
3. In the circumstances stated by the preceding syllabus, the guardian is without authority to create a debt binding upon the ward's estate, for money advanced by another to remodel or renovate houses on the ward's premises without approval of the ordinary or judge of the superior court. Code Ann. § 49-226 (Ga. L. 1958, pp. 673, 679; 1959, p. 171). See also Code Ann. § 49-213, supra, and Code § 20-206.
4. Where the plaintiff's entire case is predicated upon the alleged right to recover debts of the nature hereinbefore referred to, and legal authority of the guardian to incur such debts does not appear from the averments of the petition, no cause of action is set forth.
5. This court has jurisdiction of the present case because the petition sought to set up an equitable lien in favor of the plaintiff against the lands of the ward Hulsey Greer, and prayed that the court decree that the ward's lands be sold to satisfy the plaintiff's claim against the same. The facts set out in the petition did not show the plaintiff had a valid equitable lien against the property. Thus, it appears the averments of the petition and the prayer for relief made a bad equity case. Hicks v. Atlanta Trust Co., 187 Ga. 314, 315 ( 200 S.E. 301); O'Rear v. Lamb, 194 Ga. 455, 462 ( 22 S.E.2d 74).
The trial judge did not err in sustaining the defendant's general demurrer and in dismissing the petition.
Judgment affirmed. All the Justices concur.
SUBMITTED SEPTEMBER 11, 1962 — DECIDED OCTOBER 4, 1962 — REHEARING DENIED OCTOBER 22, 1962.
This is a suit brought by Mrs. Lula A. Greer, the widow of Seth Greer, who was the testamentary guardian of Hulsey Greer, against his successor in that trust, Kirby Greer. The suit is for the recovery of the value of services performed by Mrs. Greer in caring for Hulsey Greer during some years while he resided in the home of his original guardian, Seth Greer, and for money furnished by the plaintiff to Seth Greer to remodel and renovate houses on land in which the ward owned a life estate. The petition does not allege the time or approximate time during the years that Seth Greer served as guardian of Hulsey Greer when the money was advanced for the improvement of the houses. There is an allegation that the suit is on quantum meruit, but there is also an averment that the services were furnished with the consent of the guardian and the money advanced at his discretion and with his approval.
It is made to affirmatively appear that there was no income from the estate of the ward during the years he resided in the home of his guardian up to the time the houses were renovated, and there is no allegation that during the entire time income was collected from the houses, although the petition set out that "now," referring to the time the suit was filed, there was, on account of the improved condition of the house, an income from the farm in which Hulsey Greer owns a life estate.
The petition alleged that the plaintiff furnished the money to renovate and remodel the houses situated on the ward's property; that as a result of the improvements the property was greatly enhanced in value at the plaintiff's expense; that the plaintiff, by reason of these facts and because the advancements were authorized by the guardian who had authority to renovate the houses under the provisions of his father's will under which the ward held title, has an equitable interest in the ward's land. The petition prayed that the court by decree order the ward's lands sold to satisfy the plaintiff's claim. The will was attached as an exhibit to the petition and merely authorized Seth Greer to manage the lands for the benefit of his ward, but did not authorize him to create any lien or debt against the lands.