Hudmon v. Thomasson

Court of Appeals of Georgia

Hudmon v. Thomasson

38 S.E.2d 683, 74 Ga. App. 31, 1946 Ga. App. LEXIS 448

CourtCourt of Appeals of Georgia

DecidedJune 13, 1946

Docket31273.

StatusPublished

Cited by1 cases

This text of 38 S.E.2d 683 (Hudmon v. Thomasson) 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

Hudmon v. Thomasson, 38 S.E.2d 683, 74 Ga. App. 31, 1946 Ga. App. LEXIS 448 (Ga. Ct. App. 1946).

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Opinions

Felton, J.

All three of the counts allege substantially the same facts. Neither sets forth a cause of action on the theory that the former administrator, without authority, wrongfully meddled with or converted to his own use the personalty of the deceased, either against the former administrator or any one or more of the other defendants, especially since the original appointment of the administrator is unreversed and not set aside. It does not matter with what purpose or motive one comes into possession of such property, if and when he qrialifies as administrator of the estate his possession becomes legal, and everything preceding the appointment merges in the status, condition, and obligations then obtaining. The law then takes charge, fixes the status and present and future obligations. The duty of the administrator is to properly administer the estate. Mathews v. DeFoor, 172 Ga. 318 (158 S. E. 7). Since, however, the allegations of the petition are not in the alternative, and the single value of the -property is prayed for, each count sets forth a cause of action against the administrator as principal and his bondsmen as sureties, for failure to account to the executor for the property upon revocation of the letters of administration on the probate of the will. The Code, § 113-2204, provides: “Whenever any executor or administrator shall have been removed or shall have departed this life, being liable to the estate, it shall be the duty of such removed executor or administrator, or his representatives,, to account fully with the administrator de bonis non who may be appointed to finish the administration of such estate.” The probate of the will worked a revocation of the letters of administration as to assets unadministered. Walden v. Mahnks, 178 Ga. 825 (174 S. E. 538, 95 A. L. R. 1101). This is equivalent to a removal of the administrator. While the original two counts apparently were intended to proceed only for *34 double damages, the amendments sought single as well as double damages, and there was no objection or demurrer to the amendments to the first two counts on the grounds that they added a new cause of action. All three counts set forth a cause of action for failure to account for the property described, and it was error to sustain the demurrers and dismiss the action.

Judgment reversed. Sutton, P. J., concurs.

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Felton, J.

All three of the counts allege substantially the same facts. Neither sets forth a cause of action on the theory that the former administrator, without authority, wrongfully meddled with or converted to his own use the personalty of the deceased, either against the former administrator or any one or more of the other defendants, especially since the original appointment of the administrator is unreversed and not set aside. It does not matter with what purpose or motive one comes into possession of such property, if and when he qrialifies as administrator of the estate his possession becomes legal, and everything preceding the appointment merges in the status, condition, and obligations then obtaining. The law then takes charge, fixes the status and present and future obligations. The duty of the administrator is to properly administer the estate. Mathews v. DeFoor, 172 Ga. 318 (158 S. E. 7). Since, however, the allegations of the petition are not in the alternative, and the single value of the -property is prayed for, each count sets forth a cause of action against the administrator as principal and his bondsmen as sureties, for failure to account to the executor for the property upon revocation of the letters of administration on the probate of the will. The Code, § 113-2204, provides: “Whenever any executor or administrator shall have been removed or shall have departed this life, being liable to the estate, it shall be the duty of such removed executor or administrator, or his representatives,, to account fully with the administrator de bonis non who may be appointed to finish the administration of such estate.” The probate of the will worked a revocation of the letters of administration as to assets unadministered. Walden v. Mahnks, 178 Ga. 825 (174 S. E. 538, 95 A. L. R. 1101). This is equivalent to a removal of the administrator. While the original two counts apparently were intended to proceed only for *34 double damages, the amendments sought single as well as double damages, and there was no objection or demurrer to the amendments to the first two counts on the grounds that they added a new cause of action. All three counts set forth a cause of action for failure to account for the property described, and it was error to sustain the demurrers and dismiss the action.

Judgment reversed. Sutton, P. J., concurs.

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38 S.E.2d 683, 74 Ga. App. 31, 1946 Ga. App. LEXIS 448, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hudmon-v-thomasson-gactapp-1946.

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