166 Ga. 719 | Ga. | 1928
This case involves the distribution of approximately $10,000 arising from a war-risk insurance policy upon the life of Medford Broxton, a negro soldier who died in the service in France in 1918, and complaints regarding the allowance by the court of something over $2000 of the funds as attorney’s fees and other expenses alleged to have been necessary in bringing the fund into court. The policy of insurance was not introduced in the trial, and is not in the record. It seems to be conceded that the beneficiary of the policy was Sarah C. Bouse, to whom several installments upon the policy were paid by the Federal Government prior to her death. She died on November 25, 1919. She was the maternal grandmother of Medford Broxton. After her death, on September 7, 1923, J. Boy Bowland was appointed and qualified as permanent administrator of her estate. B. B. Bryan obtained letters of administration of the estate of Medford Broxton, and on February 28, 1927, Bryan filed a petition setting up that Medford Broxton died intestate, leaving an estate'of $9194.80 in cash, the proceeds from the insurance policy referred to; that petitioner as administrator has in hand that cash ready for distribution to the heirs at law, there being no indebtedness; that William Bouse is demanding the estate to the exclusion of all other parties, claiming to be the foster-father and only heir at law of Medford Broxton; that Peggy Broxton is claiming she is an aunt of Medford Broxton and entitled to the proceeds of the policy as his sole heir; that, so far as the administrator knows, Medford Broxton had no living father or mother, sister or brother, wife or child, or any relative closer than the foster-father and aunt above mentioned. Bryan as administrator asked for direction as to the distribution of the estate and for an order requiring William Bouse and Peggy Broxton, and others who may claim an interest as heirs at law in said estate, to
J. Boy Bowland, administrator of the estate of Sarah C. Bouse, filed his intervention. He denied that the proceeds of said policy were payable to Medford Broxton. He alleged that Sarah C. Bouse was the beneficiary; that she collected the installments due as benefits until her death on November 25, 1919; that Peggy Broxton collected $287 upon the policy from the Bureau of War Bisk Insurance after the death of Sarah C. Bouse; and that under the law an award was made to intervenor as administrator of the estate of Sarah 0. Bouse on September 29, 1924, by the Bureau of War Bisk Insurance. He prayed that the court direct Bryan, administrator, to pay to him the fund in question, after paying all legitimate charges; and that Peggy Broxton be required to pay to him all moneys collected by her as a part of such insurance.
Hpon the introduction of evidence the court directed a verdict in favor of Bowland as administrator. Bryan as administrator excepted to that ruling, and to the refusal of a new trial, assigning as error that the court erred in overruling his motion to dismiss and disallow the intervention of Bowland, upon the ground that on intervening he admitted the rights of Bryan to the fund in question ; that his petition for intervention showed that Sarah C. Bouse was dead, and that she or her administrator had no interest in said fund; that the questions presented in the intervention were moot, and the intervention failed to show any right of recovery. Bowland as administrator filed a cross-bill of exceptions to the court’s allowing H. T. Hicks and A. L. Hatcher $873.50 from the proceeds of the policy as attorney’s fees for the plaintiff to bring his suit, for the reason that Bryan as administrator brought this suit for his own protection, and the allowance for attorney’s fees was contrary to law. He excepted also to that portion of the decree allowing H. T. Hicks the sum of $919.48 as attornejr’s fees, for the reason that he was no party to the suit, and the allowance was contrary to law. and to the evidence. Bach party filed a motion to dismiss the writ of error of the other.
In the motion to dismiss Bryan’s main bill of exceptions it is asserted that the petition was filed for direction, and all parties ap
Considering the main bill of exceptions, it is plain that the petition filed by Bryan as administrator can not be properly construed otherwise than as a petition for interpleader, asking that the parties at interest named by him or any other parties having any interest in said estate be brought into court, and that he, occupying the fiduciary relationship as administrator, be directed by the court as to the proper distribution of the funds in liis hands. It is provided in section 6176 of the Code: “When the regprd shows clearly who
Our ruling is controlled by the decision in Lamar v. Lamar, 118 Ga. 684 (45 S. E. 498), in which it was held: “1. It is not the privilege of a party to an action to except to the judgment therein rendered, unless he is, either as an individual or in a representative capacity,, aggrieved thereby; and no one is, in'a legal sense, aggrieved by a judgment which does not prejudicially affect his rights of property or pecuniary interests, or those of others for whom he is, relatively to the suit in which that judgment is rendered, the duly constituted representative. 2. An executor has an undoubted right to except to a decree whereby he is deprived of commissions to which he is legally entitled; but where all the persons
It is argued in the brief that notwithstanding the facts above recited the administrator has an interest in the protection of the lawful heirs of his intestate. We can not concur in this view. He filed this petition for his own protection, and the judgment of the court, unexcepted to by any other than himself so far as this record discloses, affords him full protection. If there appeared in the record any suggestion that there were other beneficiaries than those named in the petition, the case might be different; but under the evidence in this case there is no suggestion that there are any possible beneficiaries other than the foster-father and aunt, and, as we have said, neither of them makes any complaint of the decree which was rendered. Under the procedure heretofore adopted by this court from the ease of Townsend v. Davis to that of Penland v. Jackson, supra, the motion to dismiss the writ of error must be sustained.
The cross-bill of exceptions filed by Rowland, as administrator, against Bryan, as administrator, complains of the refusal of the trial court to strike an intervention.seeking attorney’s fees, as well as that portion of a bill of interpleader seeking an allowance of counsel fees for filing such bill, and upon the ruling of the court allowing the attorney’s fees as prayed. Rowland, administrator, was the prevailing party in the suit. A cross-bill of exceptions is a remedy provided for the successful party in the trial court to have reviewed rulings made against him during the trial, in the event the unsuccessful party in the trial court succeeds in obtaining a judgment in the Supreme Court which leaves the case to be tried again in the trial court. Since, under the judgment rendered in the main bill of exceptions in this case, by which the writ of error is dismissed, there will be no retrial, the cross-bill, under the general rule, will be also dismissed.
Writs of error dismissed.