Foster v. Wood

Court of Appeals of Georgia

Foster v. Wood

137 S.E. 847, 36 Ga. App. 734, 1927 Ga. App. LEXIS 270

CourtCourt of Appeals of Georgia

DecidedApril 16, 1927

Docket17704

StatusPublished

This text of 137 S.E. 847 (Foster v. Wood) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Foster v. Wood, 137 S.E. 847, 36 Ga. App. 734, 1927 Ga. App. LEXIS 270 (Ga. Ct. App. 1927).

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Opinion

Jenkins, P. J.

This was a suit by the ordinary of Baker county against the principal and the surety on a temporary administrator’s bond, to recover for a minor $150 alleged to have been set apart as a year’s support and derived from a policy of benefit insurance on the life of the deceased father of the minor. The action was maintained under the act approved August 20, 1918 (Ga. L. 1918, p. 198 et seq.). The condition of the bond sued on (a copy of which was attached to the petition) was: “Now if the above Alex Foster shall carefully collect and preserve from waste or loss all the goods and chattels and effects of the said Owen Perry, deceased, and shall make, or cause to be made, a true and perfect inventory of all such estate, and, the same being so [735]*735preserved, do surrender up such estate and effects, with the inventory aforesaid, unto the legal and proper administrator, on or by the first Monday in July next, or so soon thereafter as the ordinary shall direct, with all his other actings and doings therein, then this obligation to be void; otherwise to remain in full force and law." The defendants demurred to the petition, contending, (1) that the plaintiff ordinary was prohibited by code section 4786 and related sections from acting as guardian of a minor residing in the county of which he is ordinary; (2) that the petition failed to show a certificate of the ordinary that no legally qualified guardian had been appointed for the minor, and that the estate of the minor fropi all sources did not exceed the sum of $500, and (3) that no action could be maintained on the bond except by a permanent administrator alleging a failure by the temporary administrator to' pay over to him the assets of the estate. The demurrer was overruled, and on the trial of the case a verdict was directed for the plaintiff in the sum of $125. A motion for a new trial having been overruled, the defendants excepted, and also preserved their exceptions made pendente lite to the overruling of the demurrer.

The first of the stated grounds of demurrer is without merit, since the act of 1918 purports to repeal all inconsistent provisions of law. The remaining grounds of demurrer were good, and the failure of the court to sustain them rendered nugatory all further action taken in the case. No decision is made upon the question whether a suit other than upon the bond could have been maintained against the temporary administrator if the petition had shown a certificate from the ordinary that no legally qualified guardian had been appointed for the minor, and that the estate of the minor, from all sources, did not exceed the sum of $500.

Judgment reversed.

Stephens and Bell, JJ., concur.

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Jenkins, P. J.

This was a suit by the ordinary of Baker county against the principal and the surety on a temporary administrator’s bond, to recover for a minor $150 alleged to have been set apart as a year’s support and derived from a policy of benefit insurance on the life of the deceased father of the minor. The action was maintained under the act approved August 20, 1918 (Ga. L. 1918, p. 198 et seq.). The condition of the bond sued on (a copy of which was attached to the petition) was: “Now if the above Alex Foster shall carefully collect and preserve from waste or loss all the goods and chattels and effects of the said Owen Perry, deceased, and shall make, or cause to be made, a true and perfect inventory of all such estate, and, the same being so [735]*735preserved, do surrender up such estate and effects, with the inventory aforesaid, unto the legal and proper administrator, on or by the first Monday in July next, or so soon thereafter as the ordinary shall direct, with all his other actings and doings therein, then this obligation to be void; otherwise to remain in full force and law." The defendants demurred to the petition, contending, (1) that the plaintiff ordinary was prohibited by code section 4786 and related sections from acting as guardian of a minor residing in the county of which he is ordinary; (2) that the petition failed to show a certificate of the ordinary that no legally qualified guardian had been appointed for the minor, and that the estate of the minor fropi all sources did not exceed the sum of $500, and (3) that no action could be maintained on the bond except by a permanent administrator alleging a failure by the temporary administrator to' pay over to him the assets of the estate. The demurrer was overruled, and on the trial of the case a verdict was directed for the plaintiff in the sum of $125. A motion for a new trial having been overruled, the defendants excepted, and also preserved their exceptions made pendente lite to the overruling of the demurrer.

The first of the stated grounds of demurrer is without merit, since the act of 1918 purports to repeal all inconsistent provisions of law. The remaining grounds of demurrer were good, and the failure of the court to sustain them rendered nugatory all further action taken in the case. No decision is made upon the question whether a suit other than upon the bond could have been maintained against the temporary administrator if the petition had shown a certificate from the ordinary that no legally qualified guardian had been appointed for the minor, and that the estate of the minor, from all sources, did not exceed the sum of $500.

Judgment reversed.

Stephens and Bell, JJ., concur.

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Bluebook (online)

137 S.E. 847, 36 Ga. App. 734, 1927 Ga. App. LEXIS 270, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foster-v-wood-gactapp-1927.