Discretion to Allow the Corpus of a Estate to Be Used for the Maintenance and Education of Ward
In Shipp v. McCowen, 147 Ga. 711 (95 S.E. 251) (1918), Shi was appointed administrator of the estate of her husband.
Shi and her four children were the distributees of the estate.
Shipp, who was one of the children, brought a petition for settlement and was awarded approximately $ 3,000 as her distributive share.
But Shi was insolvent, and Shipp sought to collect the judgment against the McCowens as surety on the administrator's bond.
The McCowens defended by alleging that Shipp had received her entire distributive share through Shi's expenditure of estate assets for the support and maintenance of the children.
The trial court accepted this defense.
The Supreme Court reversed.
It held that if it had been necessary to expend the corpus of Shipp's share for her maintenance and education, a guardian should have been appointed who should have made application to the court to encroach upon the corpus for that purpose. 147 Ga. at 714; see OGCA 29-2-2; 29-4-2 (b).
The Court held that the discretion to allow the corpus of the estate to be used for the maintenance and education of the ward belonged to the ordinary alone, although it also recognized that, if the guardian had made such expenditures without prior court approval, the court could have ratified the action by approval of regular annual returns. 147 Ga. at 715.
Because Shi had expended the corpus of Shipp's distributive share without obtaining court approval or making returns of the expenditures, the Supreme Court held that the sureties could not raise the asserted defense. Id. at 714.
The Court observed, "It may seem that this is applying a harsh and stern rule . . ., but it is the only rule that will safeguard the estate of minors." Id.