Robbins v. Riales

Court of Appeals of Georgia

Robbins v. Riales

150 S.E.2d 187, 113 Ga. App. 881, 1966 Ga. App. LEXIS 1241

CourtCourt of Appeals of Georgia

DecidedJune 27, 1966

Docket42076

StatusPublished

Cited by4 cases

This text of 150 S.E.2d 187 (Robbins v. Riales) 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

Robbins v. Riales, 150 S.E.2d 187, 113 Ga. App. 881, 1966 Ga. App. LEXIS 1241 (Ga. Ct. App. 1966).

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Opinion

Felton, Chief Judge.

This action is without question one based on Code § 113-1102, which is as follows: “If any person, without authority of law, wrongfully intermeddles with, or converts to his own use, the personalty of a deceased individual whose estate has no legal representative, he shall be held and deemed an executor in his own wrong, and as such shall be liable to the creditors and heirs or legatees of such estate for double the value of the property so possessed or converted by him; nor shall such executor be allowed to set off any debt due to him by the deceased, or voluntarily paid by him out of the assets. If such executor dies, his legal representatives shall be liable in the same manner, and to the same extent, as he would be if he were still living.” This Code section is in derogation of common law and must be strictly construed. It is a harsh remedy in that it provides a one hundred percent penalty based on the value of property involved plus the denial of benefits which could otherwise accrue to the defendant. For a petition under this section to be [883]*883good as against a general demurrer it must show intermeddling in bad faith, possession amounting to a conversion in bad faith, or an attempt to deal with the property in question as an executor, in bad faith. The general allegations of the petition to the effect that the defendant had wrongfully converted the property to her own use and was exercising control over the same and had wrongfully intermeddled with petitioners’ share must yield to the specific allegation that the defendant refused to give up said property by treating it as her own “and demanding that petitioners assign their share to her.” The petition does not allege the necessary ingredient in that it is not alleged that the defendant is acting in bad faith and not under a bona fide claim of right whether the bona fide claim is founded or unfounded. The petition also shows on its face that the defendant could not perform the function of an executor with reference to the stock and dividends because she could do nothing with the property without the consent of the plaintiffs to a sale or transfer of the property by endorsing the dividend checks and transferring the certificates of stock. See as to the rulings above: Chattanooga Stove Co. v. Adams, 81 Ga. 319 (6 SE 695); Willingham v. Rushing, 105 Ga. 72 (31 SE 130); Robinson v. Murray, 198 Ga. 690 (10b) (32 SE2d 496).

The court erred in overruling the renewed general demurrer to the petition.

Judgment reversed.

Frankum and Pannell, JJ., concur.

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Felton, Chief Judge.

This action is without question one based on Code § 113-1102, which is as follows: “If any person, without authority of law, wrongfully intermeddles with, or converts to his own use, the personalty of a deceased individual whose estate has no legal representative, he shall be held and deemed an executor in his own wrong, and as such shall be liable to the creditors and heirs or legatees of such estate for double the value of the property so possessed or converted by him; nor shall such executor be allowed to set off any debt due to him by the deceased, or voluntarily paid by him out of the assets. If such executor dies, his legal representatives shall be liable in the same manner, and to the same extent, as he would be if he were still living.” This Code section is in derogation of common law and must be strictly construed. It is a harsh remedy in that it provides a one hundred percent penalty based on the value of property involved plus the denial of benefits which could otherwise accrue to the defendant. For a petition under this section to be [883]*883good as against a general demurrer it must show intermeddling in bad faith, possession amounting to a conversion in bad faith, or an attempt to deal with the property in question as an executor, in bad faith. The general allegations of the petition to the effect that the defendant had wrongfully converted the property to her own use and was exercising control over the same and had wrongfully intermeddled with petitioners’ share must yield to the specific allegation that the defendant refused to give up said property by treating it as her own “and demanding that petitioners assign their share to her.” The petition does not allege the necessary ingredient in that it is not alleged that the defendant is acting in bad faith and not under a bona fide claim of right whether the bona fide claim is founded or unfounded. The petition also shows on its face that the defendant could not perform the function of an executor with reference to the stock and dividends because she could do nothing with the property without the consent of the plaintiffs to a sale or transfer of the property by endorsing the dividend checks and transferring the certificates of stock. See as to the rulings above: Chattanooga Stove Co. v. Adams, 81 Ga. 319 (6 SE 695); Willingham v. Rushing, 105 Ga. 72 (31 SE 130); Robinson v. Murray, 198 Ga. 690 (10b) (32 SE2d 496).

The court erred in overruling the renewed general demurrer to the petition.

Judgment reversed.

Frankum and Pannell, JJ., concur.

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Bluebook (online)

150 S.E.2d 187, 113 Ga. App. 881, 1966 Ga. App. LEXIS 1241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robbins-v-riales-gactapp-1966.

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