60 Ga. App. 769 | Ga. Ct. App. | 1939
J. Ben Cagle was appointed administrator of the estate of M. R. Cagle, administered thereon in such capacity, filed his final return as administrator, and asked to be discharged. The other heirs of said estate, Boy Cagle, Lewis Cagle, Taylor Cagle, and Lois Cagle Killian, sons and daughter of M. R. Cagle, filed objections to such discharge, asked for an accounting, and showed in their caveat that before the appointment of J. Ben Cagle as administrator, and at a time when the respondents and heirs were about to petition the ordinary for the appointment of one of their number as such administrator, J. Ben Cagle made an oral agreement with each and all of the respondents to the effect “that if respondents would refrain from urging any objections to his appointment as administrator of the estate of M. R. Cagle, deceased, and would refrain from petitioning the ordinary for the appointment as' such administrator any of them, that the said J. Ben Cagle would act as such administrator and administer said estate according to law, and would waive the commission allowed by law to administrators, and would charge no commission for his services as such administrator.” Acting upon said agreement and in con
The administrator demurred to the objection or caveat, on the grounds that it failed to allege any legal reason preventing his discharge, and that it showed on its face that the promise not to charge any commissions was an individual undertaking and was not binding on him as an administrator, and that as administrator he was not liable therefor. A special demurrer was on the ground that such alleged agreement was oral, and was not enforceable at law, because it was without .consideration, and was nothing more than a promise to answer for the debt of another; and that such commissions are fixed by law, and can not be determined by private contract. Exceptions were taken to the overruling of these demurrers.
With reference to the special demurrer we may say: “Although the rate or amount of compensation fixed by statute is ordinarily controlling, an agreement by an executor or administrator to serve for less than compensation fixed by statute is valid and enforceable.” 21 Am. Jur. 677, § 527. In 24 C. J. 996, § 2430, it is said: “It has been held that allowing one to be appointed administrator, or foregoing the right to oppose his appointment, is a sufficient consideration for his promise to serve without compensation.” Likewise, “An executor or administrator may waive or renounce his claim to compensation for performance of the duties of his trust, and a promise or agreement made by him that he will not charge for his services may be regarded as equivalent to a renunciation of his claim.” 24 C. J. 995, § 2430. In Estate of
The court did not err in overruling the general demurrer. It is insisted that any liability that may exist as between the parties in this ease by reason of the violation of the agreement was against J. Ben Cagle in his individual capacity, and not against him as administrator. It was said in the Fogg ease, supra, that a promise made after the appointment would be without consideration. We also think that had Cagle made a promise to forego his commissions after his appointment, such agreement would have been a mere naked promise. The petition here alleges a consideration, for the promise was made before the appointment. The caveat asked the court of ordinary to refuse to approve a final return which would authorize the payment of a sum by the administrator to
Judgment affirmed.