Petition for Release From Surety Obligation; Order of Discharge; Appointment and Liability of New Surety; Accounting Requirement

1. Law
2. Georgia Code
3. Guardian and Ward
4. Conservators of Minors
5. Bonding of Conservators
6. Petition for Release From Surety Obligation; Order of Discharge; Appointment and Liability of New Surety; Accounting Requirement

1. The surety on the bond of any conservator or, if the surety is dead, the surety's personal representative, may at any time petition the court regarding any misconduct of the conservator in the discharge of the conservator's trust or to show the court its desire for any reason to be relieved as surety. The death of a surety shall be a sufficient ground for the discharge of the surety from future liability.
2. Upon a petition by the surety or the surety's personal representative, the court shall cite the conservator to appear and show cause, if any, why the surety should not be discharged. After hearing the parties and the evidence, the court, in its discretion, may issue an order discharging the surety from all future liability and requiring the conservator to give new and sufficient security or be removed as conservator.
3. If new security is given, the discharged surety shall be discharged only from liability for future misconduct of the conservator from the time the new security is given. The new surety shall be liable for past as well as future misconduct of the conservator.
4. If new security is not given and the conservator is removed, the discharged surety shall be bound for a true accounting of the conservator with the successor conservator or with the minor if no other conservator is appointed. In all cases where letters of conservatorship are revoked, any surety on the bond shall be liable for all acts of the conservator in relation to the trust up to the time of the settlement with the new conservator or the minor.

(Code 1981, §29-3-49, enacted by Ga. L. 2004, p. 161, § 1.)

Cross references.

- Requiring guardian to give other security or be discharged on application of ward's relative or on court's own motion, § 29-4-15.

Law reviews.

- For annual survey article on wills, trusts and administration of estates, see 50 Mercer L. Rev. 381 (1998).

JUDICIAL DECISIONS

ANALYSIS

• General Consideration
• Liabilities of Discharged and Second Surety

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Laws 1810, Cobb's 1851 Digest, p. 317, Code 1873, § 1817, former Code 1882, § 1817, former Civil Code 1895, § 2533, former Civil Code 1910, § 3052, former Code 1933, § 49-233, and former O.C.G.A. § 29-2-52 are included in the annotations for this Code section.

Only surety or representative can institute proceeding.

- Proceeding under former Code 1933, § 49-233 (former O.C.G.A. § 29-2-52) could be instituted only by surety, or, if surety was dead, by the surety's representative. Great Am. Indem. Co. v. Jeffries, 65 Ga. App. 686, 16 S.E.2d 135 (1941) (decided under former Code 1933, § 49-233).

Principal and surety cannot by agreement release surety, even with approval of court. Great Am. Indem. Co. v. Jeffries, 65 Ga. App. 686, 16 S.E.2d 135 (1941) (decided under former Code 1933, § 49-233).

Guardian must be cited before surety can be discharged.

- Surety on a guardian's bond can obtain no discharge without a petition and without having an ordinary (now judge of probate court) to cite guardian to appear and show cause against application. DuPont v. Mayo, 56 Ga. 304 (1876) (decided under former Code 1873, § 1817).

Two distinct contingencies whereby surety may seek discharge.

- Under former Civil Code 1910, § 3052 (former O.C.G.A. § 29-2-52), surety on guardian's bond could obtain relief in two distinct contingencies; first, in case of misconduct of guardian in discharge of trust; second, when for any other reason, the surety desires to be relieved. Means v. American Bonding Co., 23 Ga. App. 453, 98 S.E. 399 (1919), cert. denied, 23 Ga. App. 813 (1919) (decided under former Civil Code 1910, § 3052). National Sur. Co. v. Morris, 111 Ga. 307, 36 S.E. 690 (1900) See also.

Preremoval misconduct.

- Former O.C.G.A. § 29-2-52 did not require the court, based on the guardian's preremoval misconduct, to grant a surety's petition for relief from its obligations under bonds, and thereby discharge the surety from any liability for the guardian's misconduct. Osborne Bonding & Sur. Co. v. Glaze, 230 Ga. App. 895, 497 S.E.2d 612 (1998) (decided under former O.C.G.A. § 29-2-52).

Acts or omissions pertaining to mismanagement of estate constitute misconduct.

- Under former Code 1933, § 49-233 (former O.C.G.A. § 29-2-52) all acts, whether of commission or omission, which pertain to mismanagement of estate by guardian or administrator, constituted misconduct and could authorize discharge of surety. Spradley v. St. Paul Fire & Marine Ins. Co., 108 Ga. App. 865, 134 S.E.2d 850 (1964) (decided under former Code 1933, § 49-233).

The words, "any misconduct of his principal [guardian] in discharge of his trust," are exhaustive of all acts, whether of commission or omission, which pertain to guardian's mismanagement of estate, or nonperformance of any duties devolving upon him in his office. National Sur. Co. v. Morris, 111 Ga. 307, 36 S.E. 690 (1900) (decided under former Civil Code 1895, § 2533); Means v. American Bonding Co., 23 Ga. App. 453, 98 S.E. 399 (1919);(decided under former Civil Code 1910, § 3052).

Acts of guardian authorized discharge of surety.

- See Means v. American Bonding Co., 23 Ga. App. 453, 98 S.E. 399 (1919) (decided under former Civil Code 1910, § 3052).

Discharge prevents proceedings against continuing guardian's acts prior to discharge.

- Outgoing surety cannot by proceedings instituted subsequent to discharge, interfere with guardian who is continued in outgoing surety's office, in discharge of the surety's duties, because of acts of mismanagement and failure to comply with requirements of law relative to the surety's duties which occurred prior to discharge of first surety. Hooks v. Fidelity & Deposit Co., 135 Ga. 396, 69 S.E. 484 (1910) (decided under former Civil Code 1910, § 3052).

Reasons other than official misconduct for which surety might seek discharge.

- A guardian's want of personal integrity, lack of business capacity, extravagant or reckless living, indulgence in vicious or immoral habits, criminality, and scores of other things which might be suggested, would certainly afford good reasons for a desire to be relieved as surety. National Sur. Co. v. Morris, 111 Ga. 307, 36 S.E. 690 (1900) (decided under former Civil Code 1895, § 2533); Means v. American Bonding Co., 23 Ga. App. 453, 98 S.E. 399 (1919);(decided under former Civil Code 1910, § 3052).

Surety seeking discharge against continuing guardian is not entitled to accounting.

- Surety is not entitled to seek in a petition for discharge an accounting from guardian who, by providing new security, continues in a trust capacity. Spradley v. St. Paul Fire & Marine Ins. Co., 108 Ga. App. 865, 134 S.E.2d 850 (1964) (decided under former Code 1933, § 49-233).

Discharged surety not entitled to require payment of ward's funds into court by continuing guardian. Hooks v. Fidelity & Deposit Co., 135 Ga. 396, 69 S.E. 484 (1910) (decided under former Civil Code 1910, § 3052).

Surety need not wait until liable for waste or mismanagement.

- Surety not bound to wait until liability for actual waste or mismanagement arises. The surety may reasonably anticipate same and move for relief at that time. National Sur. Co. v. Morris, 111 Ga. 307, 36 S.E. 690 (1900) (decided under former Civil Code 1895, § 2533).

Surety need not show actual loss by guardian's misconduct.

- To state a cause of action for discharge under former Code 1933, § 49-233 (former O.C.G.A. § 29-2-52), it was not necessary that surety show actual loss had accrued to estate by reason of official misconduct of the principal, it being sufficient to show that guardian or administrator has refused to comply with the law, thereby raising reasonable apprehension of future loss. Spradley v. St. Paul Fire & Marine Ins. Co., 108 Ga. App. 865, 134 S.E.2d 850 (1964) (decided under former Code 1933, § 49-233).

Cited in Snow v. Brown, 100 Ga. 117, 28 S.E. 77 (1897); Tucker v. American Sur. Co., 191 F.2d 959 (5th Cir. 1951).

Liabilities of Discharged and Second Surety

Effect of discharge on liabilities of new and old sureties.

- Discharge of sureties upon guardian's bond releases them from all future responsibility. New sureties are bound for all past and future waste. Justices of Inferior Court ex rel. Woods v. Woods, 1 Ga. 84 (1846) (decided under Laws 1810, Cobb's 1851 Digest, p. 317).

Liability is between second surety and discharged surety.

- Second surety's liability for guardian's past defaults is primary as between himself and discharged surety. Tittle v. Bennett, 94 Ga. 405, 21 S.E. 62 (1894) (decided under former Code 1882, § 1817).

Discharged and new sureties both primarily liable to wards.

- Liability of discharged surety and second surety is not joint, but several, both being primarily liable to wards, and as between themselves, the second surety is primarily liable. Sutton v. Williams, 77 Ga. 570, 1 S.E. 175 (1886) (decided under former Code 1882, § 1817).

RESEARCH REFERENCES

C.J.S.

- 39 C.J.S., Guardian and Ward, §§ 293 et seq., 304 et seq.

ALR.

- Liability of attorney for loss or waste of funds of minor, 62 A.L.R. 910.

ARTICLE 5 COMPENSATION OF CONSERVATORS

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