121 Ga. 111 | Ga. | 1904
The law in reference to county administrators was not intended to affect other provisions of the code. It was rather supplementary and intended to provide for an officer who should, be bound to qualify when, because of the meager assets, inability to give bond, or want of resident heirs or of persons interested, the-estate was likely to be unrepresented. But there was no presumption that the estate would likely be unrepresented. In order to let that fact be tested, notice must be given. The code authorizes the ordinary to vest the administration in the county administrator, “a citation being first published for four weeks, as-in other cases.” (§3381.) There is here no suggestion that-the county administrator, as such, may be appointed temporary administrator, under the Civil Code, § 3359, under which the-letters issue at any time and without citation. On the contrary,. §§ 3359 and 3381 are to meet diametrically opposite conditions. One section provides for temporary letters until the one regularly entitled under § 3367 can be permanently appointed. The other-provides that the county -administrator shall be appointed only When it is not likely that any one else will apply. He then qualifies, not temporarily until another is appointed, but permanently,, and because no one else will be appointed. It is not contemplated that he shall come into competition with others, or that he shall be' appointed in the first instance, but he is to be appointed only as a last resort. Every estate is necessarily unrepresented for some length of time after the death of the intestate. It is-manifest that this fact alone can not authorize the county administrator to act as temporary administrator, and thereby increase the risk of his bondsmen, merely because he makes the first application. In that proceeding there is no provision for notice, or for hearing evidence as to the likelihood that the estate will not be-represented. That being true, the county administrator’s duty can not relate to that class of appointments. A temporary administrator is appointed without notice. The county administrator, as such, can only be appointed in those cases wherein citation for four weeks is required. In the present instance Eripp may be personally liable for what he has collected. But certain it is that he has-undertaken an office which did not devolve upon him by virtue of his position as county administrator. His bondsmen are entitled to rely on the rule that their liability as sureties.
We were urged in argument to decide other questions, which would be properly raised in case we held the sureties liable, on this bond, for Fripp’s acts’ as temporary administrator. It would be manifestly improper to decide as to the measure of their responsibility in other cases whei'e he was regularly appointed permanent administrator, even though so .to do might settle other cases now pending in the court below.
Judgment reversed.
