
    Rich & Brothers v. Fidelity and Deposit Company.
    1. This case is controlled by the ease of Fidelity Co. v. Rich, 122 Ga. 506, except as to the question of estoppel.
    2. The plaintiffs obtained a judgment against a guardian upon an open account, which was not properly a liability of the ward’s estate, and the refusal, to pay which did not (under the decision above referred to) constitute a breach of the bond. After that decision another suit was brought for the same cause of action, with the additional allegations that the guardian had received the proceeds of a life-insurance policy in which the wards had an interest; that the surety filed a petition to the ordinary, alleging that the guardian had mismanaged the estate and violated the law, and seeking to be relieved from the bond; that the plaintiffs as creditors objected to the discharge of the surety; that in answer to the rule nisi the guardian filed final returns, in which she included the amounts due to the plaintiffs; that the surety knew of this and was a party to the crediting of such sums in the final returns; that the sole purpose was’ to relieve it as surety on the bond; and that if .such amounts had not been allowed in the returns as constituting a part •of the expenditures of the guardian, they would now be in the hands of the guardian to liquidate petitioners’ claims. It did not -appear that the surety was discharged. Held: (1) That this did not operate as an ■estoppel by judgment on the surety, because the allowance of the returns was not a judgment in a proceeding to which the surety and the present plaintiffs were parties, although the making of the return by the guardian may have resulted from a proceeding on the part of the surety to ■obtain a discharge from the bond. (2) The statements in the .return of the guardian were not solemn admissions in judieio by the surety, although the latter may have instigated or approved them, and they may have been for its benefit. (3) Considered as an estoppel by admission •or in pais, no action on the part of the creditors in reliance upon such statements appears, and no injury resulting to them. (4) Whether or not the making of such a return and the participation therein by the surety operated as a fraud upon the wards or would furnish any basis for action by them, relatively to the creditors now suing, a return claiming that such items were proper to be allowed to the guardian, and the •obtaining of the approval of the return, although participated in by the .surety, would not render it liable to such creditors for the amount of ■their claim, if in fact it had not been paid, and was not one the refusal to pay which would in law make the surety liable on the bond.
    
      All the Justices concur, except Fish, O.' J., absent.
    
    Argued May 29,-
    Decided August 13, 1906.
    Action on bond. Before Judge Pendleton. Fulton superior court. December 5, 1905.
    
      J. IS. & L. F. McClelland, for plaintiffs.
    
      Rosser & Brandon, for defendant.
   ■Judgment affirmed.  