112 Ga. 542 | Ga. | 1901
It appears from the record that Catherine Banks died testate in 1887. It does not appear whether or not her will nominated an executor, or whether, if one was nominated, he qualified. It does appear that in December, 1891, the ordinary appointed Lucinda Martin administratrix with the will annexed, and that she brought complaint for land against Samuel Walker in January, 1892. Walker defended, and on the trial the jury found in his favor. The administratrix made a motion for a new trial, which was overruled. She excepted and brought the case to this
After much reflection and investigation we have come to the conclusion that, under the law of this State, a temporary administrator can not institute and maintain an action for the recovery of land held adversely to the estate. Consequently the trial judge erred in overruling the objections made to the evidence offered in support of. the plea of res judicata, and in directing a verdict in favor of that plea. It will be observed that section 3359 of the Civil Code ■of this State gives the ordinary power to appoint a temporary administrator “upon any unrepresented estate, for the purpose of collecting and taking care of the effects of the deceased,” to continue