174 Ga. 191 | Ga. | 1931
(After stating the foregoing facts.) The application of C. H. Baldwin to be appointed administrator de bonis non cum testamento annexo is based upon the request of parties
There were two caveats to C. H. Baldwin’s application to be appointed administrator. In the caveat filed by Bearden as executor of the will of Josephine Y. Overby (formerly Josephine Y. Thrasher) it is alleged that “The application should be refused for the following reasons: That, regardless of the construction placed on the deed of October 14, 1865, the title to said land would not vest in the heirs of said Barton Thrasher, because on October 14, 1865, he made his last will and testament, which went into effect at his death during the year 1867, and a copy of which is hereto attached, marked Exhibit B; and the caveator shows that even if the said Barton Thrasher had any reversionary interest in said land under the deed to Josephine Y. Thrasher, that this reversionary interest passed to said Josephine Y. Thrasher by virtue of said will, . . and that therefore, if there is any necessity for administration of said-land in this court, it should be administered as a part of the estate of the said Josephine Y. Overby.” A further ground of the caveat set up “that there is no property now in existence, so far as he is advised, belonging to the estate of Barton Thrasher; and if administration be granted, 'it would operate as a cloud on the title of this caveator to the land described in the application for administration.” The court had before it, therefore, on the hearing upon demurrer, both the deed to Josephine Y. Thrasher and the will of Barton Thrasher. Both instruments were executed by Barton Thrasher on the same day, October 14, 1865. It appears from the will that on the same day on which Barton. Thrasher executed the deed to Josephine Y. Thrasher (later Overby) he made in his will a general distribution of his entire estate, and referred expressly to his gift to Josephine Y. Thrasher. The judge evidently took the view that from the language used in the deed all of the rights of the children of Maude Overby, the daughter of Josephine Y. Thrasher, were extinguished, because Maude Overby predeceased her mother.
The first question raised 'in the caveats is as to the jurisdiction; that is to say, that the court of ordinary of Morgan County has no. jurisdiction to appoint an administrator de bonis
We come then to consider the second ground of the caveats, which set up, in effect, that an administrator should not be appointed, because there is no estate to be administered. This objection has been considered in some prior adjudications of this court, and, under the circumstances then involved, held to be without merit. Perhaps the first case ruling distinctly upon the point was that of Augusta & Summerville Railroad Co. v. Peacock, 56 Ga. 146, but that was a ease in which the railroad company contested the application for administration of the estate of an infant two years old, whose death occurred in a railway accident, upon the apprehension that the sole purpose of the applicant for administration was to be qualified to bring suit against the railroad for damages growing out of the tortious homicide of his intestate. This court held that the caveat was without merit, because the
And so we may say in this case, that, under the facts they set up, the caveators, claiming an entire interest in the whole tract of land which the applicant for administration sought to have administered, are interested in not having it wasted in expenses of an unnecessary administration. The question as to who may object to the grant of letters of administration has been before this court a number of times. In Augusta &c. R. Co. v. Peacock, supra, it was held: “Before one can be heard as a party to the proceeding before the ordinary, he must show that he has an interest in the choice of administrator, either as heir or creditor; some interest on the part of the objector in the assets and their distribution must appear.” This court sustained the grant to Peacock of letters of administration of the estate of a child two years old, over objections of the railroad company upon the ground that the deceased left no creditor in Georgia and no property at all, and that the entire estate of the deceased consisted of a claim for damages for this homicide. The court held that it would not do to hold that one might object to the grant of letters of administration merely because he was “apprehensive that he might be sued by an administrator when appointed.” Judge Jackson, delivering the opinion of the court, said further: “We think it best not to open the doors to such intervention. It might transfer to the ordinary questions of title to land, suits ex delicto, like this, and other matters not properly within the jurisdiction of that court.” In Dierks v. Smith, supra, it was expressly held that the ruling therein made was not in conflict with Augusta &c. R. Co. v. Peacock. Of course, as said by Mr. Justice Cobb in Towner v. Griffin, 115 Ga. 966 (42 S. E. 262), “A mere interloper should not be allowed to interfere where a proper application has been made for letters of administration upon the estate. A person who is not concerned in any way in the question should, of course, not be heard before the court.” But it is apparent in the present case that the caveators have a very substantial interest in the subject-matter of the proposed administration. In Mathews v. Rountree, 123 Ga. 327 (51 S. E. 423), Mr. Presiding Justice Pish made a very comprehensive review of the rulings of this court upon this subject, and the conclusion reached by the court was stated in the ruling that
As has been referred to heretofore, a copy of the will of Barton Thrasher was attached to the caveat of Bearden, executor of the will of Josephine Y. Overby. In his application for letters of administration O. H: Baldwin avers that he has been requested by many of the persons interested in said estate “under said will” to make the application. It seems to us to be very clear that under this will there is no estate to be administered, and certainly not the tract of land in which the caveators are interested. The. power of the administrator must depend entirely upon the will, in so far as the property specifically named in the will is dealt with. Of course an executor or administrator can administer property of a testator which is not dealt with in the will and as to which' there is an intestacy, but so far as the present case is concerned there is nothing to be administered except the 830-1/2 acres of land which is specifically dealt with in the will, and as to which the testator says he has made a deed of gift to Josephine Y. Thrasher, without any limitation whatsoever except that she should account for it at a named valuation in the distribution of his estate. It would seem that as the deed in this case and the will were, both executed upon the same day, as • contemporaneous writings they must be considered together in arriving at the intention of Barton Thrasher in each and both' of his capacities as grantor in the deed and as maker of the will. If we do this, the reversion
Judgment reversed.