dissenting.
I respectfully dissent from the judgment of reversal. “An appeal shall lie to the superior court from any decision made by the probate court, except an order appointing a temporary administrator.” OCGA § 5-3-2 (a). In my view, the issues in this appeal, as enumerated and briefed by the parties, involve strictly a determination whether the evidence supported the superior court’s vacation and setting aside of the probate court’s letters of dismission. The standard of appellate review is, therefore, simply an “any evidence” standard.
Plaintiff Suanne Marie Rivkin Quinton, now known as Suanne Marie Mitchell, initiated this petition to set aside the order of the *839Probate Court of Union County, Georgia, which had previously “dismissed [her mother, defendant Linda Rivkin Plott, now known as Linda Rivkin Kirby (‘defendant Kirby’),] as guardian of [plaintiff’s] property. . . .” Defendant Utica Mutual Insurance Company “was served with a copy of the Petition as the surety on a bond in the amount of $450,000, which [bond] was issued pursuant to the Probate Court of Union County’s Order of May 11, 1988.” The petition alleged in part that defendant Kirby’s “dismissal was improperly granted and/or fraudulently obtained as there was no accounting and settlement made to the Probate Court. . . .” Plaintiff amended her complaint to allege that she “did not become aware Defendant Kirby [allegedly] breached her fiduciary duty until December of 1994 when she [plaintiff] began to investigate the status of her estate,” and further alleged commingling of funds, waste, and mismanagement. Plaintiff demanded a final accounting and settlement. Both defendants admitted that defendant Kirby had been dismissed as the guardian of plaintiff’s property after plaintiff married but denied the material allegations of fraud and impropriety.
Plaintiff subsequently moved for summary judgment under OCGA § 9-11-56 (a), supporting her motion in part with the affidavits of Marcus Sosebee, Judge of the Probate Court of Union County. Probate Judge Sosebee, who is not an attorney, deposed that while it is the “procedure of [that] court, in a proceeding for the dismissal of a guardian, [to] appoint a guardian ad litem where the ward is still a minor, . . . and that a hearing [be] conducted on all issues . . . including a full accounting of the ward’s estate, . . . [at] the time of the dismissal of [defendant Kirby] as natural guardian of the property of [plaintiff,] no guardian ad litem was appointed to represent the ward at the dismissal hearing; no hearing was conducted on the issues of dismissal, no final accounting was provided by the [defendant] and the fact that the ward was still a minor was not made known to the Court by [defendant] or her counsel. . . .” This testimony was corroborated by the affidavit of Shirley Stokes, former Clerk of the Probate Court of Union County.
The Superior Court of Union County determined that any presumption of regularity had been overcome and that the direct, positive, and uncontradicted evidence showed that the probate court “did not examine the guardian’s accounts and vouchers to verify the truth of the application nor did the Probate Court receive evidence that the Plaintiff was of age and there was no longer a necessity for continuing the guardianship.” Consequently, the Superior Court ordered “that the letters of dismission granted Defendant Kirby by the Probate Court of Union County on May 6, 1991 be . . . vacated and set aside. . . .” The Superior Court further ordered that “this case proceed to trial on the issue of a final accounting and settlement of *840Defendant Kirby’s guardianship. . . .” From this order effectively granting partial summary judgment, defendants bring this direct appeal. OCGA § 9-11-56 (h).
Defendants first contend the Superior Court erred in setting aside the judgment of the Probate Court, arguing that plaintiff failed to make out a case for relief from judgment under the standards of OCGA § 9-11-60 (d). This contention is, in my view, without merit.
“Letters of dismission may be granted by the judge of the probate court to any guardian upon compliance with the procedure outlined in this Code section. The guardian shall . . . [set] forth his full discharge of the duties of his trust. The judge of the probate court shall examine the guardian’s accounts and vouchers to verify the truth of the application. . . . Proof shall bé offered to show that the ward is of age or that there is no longer a necessity for continuing the guardianship.” OCGA § 29-2-84 (a).
“ Tt is an imperative duty of an accounting party, whether an agent, a trustee, a receiver or an executor (for . . . they all stand in the same situation) to keep his accounts in a regular manner, and to be always ready with his accounts; neglect of this duty is a ground for charging him with interest for balances in his hands and with cost. So a trustee and executor is bound to render every necessary information that is required of him, and he who, undertaking to give information, gives but half information, in the view of a court of chancery, conceals; if he has not all the information necessary, he is bound to seek first, and if practicable, to obtain it.’ That concealment per se amounts to actual fraud when, from any reason, one party has a right to expect full communication of the facts from another, is a well-settled principle, recognized by both the civil and the moral law. [Cit.]” (Emphasis in original.) Poullain v. Poullain, 76 Ga. 420, 444 (5), 446 (4 SE 92). Like an executor or trustee, “the guardian [of a minor’s property] acts in a fiduciary capacity, and is bound to utmost good faith with the court and the ward in the interest of the latter.” American Surety Co. v. Adams, 190 Ga. 575 (hn. 2) (10 SE2d 30).
The uncontradicted positive evidence here fully supports the determination of the Superior Court that defendant Kirby failed to apprise the Probate Court of material facts, failed to offer an accounting, and failed to state the applicable standard for obtaining letters of dismission as established by OCGA § 29-2-84. “We have just seen that it is the duty of the ordinary [now probate judge], in passing upon all these accounts, and especially upon the final account, with a view to granting the guardian a discharge, to ascertain, before doing so, that all the duties of the trust have been fully performed, and that this essential fact must be made to appear by a careful scrutiny and examination by him of the various items thereof and the vouchers sustaining them. It is scarcely necessary to observe that the *841omission of what is claimed to be much the larger part of the estate and the incorrectness of other items [or factual allegations], or[, as here,] the failure to furnish any vouchers whatever, would raise a presumption against the fairness of the transaction. . . .” Poullain v. Poullain, 76 Ga. 420, 444 (5), 445, 447, supra. The Superior Court did not, in my opinion, err in granting summary judgment to plaintiff, effectively vacating and setting aside the judgment of the Probate Court. As my colleagues in the majority would nevertheless reverse that correct determination, I respectfully dissent.
Decided July 16, 1997 Reconsideration denied July 31, 1997 Gambrell & Stolz, Bryan M. Cavan, Leo J. Fogarty, Ronald C. Melcher, Mikele S. Carter, for appellants. Gunter & Stancil, Norman S. Gunter, for appellee.