Johnson v. United States Fidelity & Guaranty Co.

132 S.E. 130, 35 Ga. App. 106, 1926 Ga. App. LEXIS 569

Opinion

Stephens, J.

1. This is a suit against the surety upon an administrator’s bond in behalf of alleged creditors of the estate; and while it appears that part of the amount sued for has been adjudged a liability against the administrator in his representative capacity in a prior suit against the administrator to which the surety was not a party, it nevertheless appears from the allegations in the petition that the entire amount sued for represents rents and profits from real estate which belonged to the intestate accruing after the death of the intestate. The administrator can not be considered as having collected such rents and profits in his capacity as administrator, and the surety upon the administrator’s bond is not liable for the failure of the administrator to account therefor. Hoyt v. Ware, 156 Ga. 98 (6) (118 S. E. 734) ; Roberts v. Kite, 33 Ga. App. 91 (125 S. E. 719).

2. The petition failed to set out a cause of action against the surety, and the general demurrer thereto was properly sustained. Bryant v. Owen, 1 Ga. 355; Gibson v. Robinson, 90 Ga. 756 (2) (16 S. E. 969, 35 Am. St. Rep. 250); Fidelity Co. v. Rich, 122 Ga. 506 (2) (50 S. E. 338) ; Shipp v. McCowen, 147, Ga. 711 (95 S. E. 251, L. R. A. 1918E, 816, note).

Judgment affirmed.

Jenlcins, P. J., and Bell, J., concur.