Harrell v. Warren

30 S.E. 426, 105 Ga. 476, 1898 Ga. LEXIS 569

• Court: Supreme Court of Georgia
• Decided: April 1, 1898
• Status: Published

Opinion

Fish, J.

1. Section 3493 of the Civil Code, which confers upon any person interested in an estate as distributee or legatee the right to cite the legal representative thereof to a settlement of his accounts, and upon the latter a corresponding right to cite all the distributees to appear before the ordinary in order that such a settlement may be made, evidently contemplates that the proceeding which it authorizes at the instance of the former shall be an entirely distinct one from that which the latter may institute.

2. When, therefore, a legatee under a will cites an administrator de bonis non cum testamento annexo to a settlement, the defendant is not, as a matter of right, entitled to have another, who is the sole remaining legatee, made a party to the proceeding. Such other legatee would be a proper, but is not an essential, party.

Submitted January 18, Decided April 1, 1898.

Certiorari. Before Judge Gamble. Jefferson superior court. May term, 1897.

Gain & Polhill and R. V. Hardeman, for plaintiff in error.

3. The ordinary did not err in refusing to grant the defendant’s motion to have an additional party made; and consequently there was no error in overruling the certiorari.

Judgment affirmed.

All concurring, except Cobb, J., absent.