Gammage v. Perry

103 S.E. 173, 25 Ga. App. 305, 1920 Ga. App. LEXIS 758

• Court: Court of Appeals of Georgia
• Decided: May 11, 1920
• Docket: 11343
• Status: Published

Opinion

Broyles, C. J.

1. The provision of section 4073 of the Civil Code of 1910, that “any person interested as distributee or legatee may, after the expiration of one year from the grant of administration, cite the administrator to appear before the ordinary for a settlement of his accounts,” does not apply to judgment creditors of such legatees or distributees. The remedy of such creditors is plainly provided in sections 5303 and 5304 of the Civil Code of 1910; and the court of ordinary has no jurisdiction to entertain a petition of a judgment creditor of a distributee or legatee of an estate to cite the administrator to appear before the ordinary for an accounting and settlement of such funds in his hands as may be due to the distributee or legatee, and to pay out of such funds to the petitioner the amount of his judgment.

2. It follows from the above ruling that in the instant case the court of ordinary erred in overruling the general demurrer to the petition, and that the judge of the superior court, on appeal, correctly sustained the demurrer and dismissed the suit.

Judgment affirmed.

Luke and Bloodworth, JJ., concur. Maynard & Williams, for plaintiff. Wallis & Fort, for defendant.