175 Ga. 55 | Ga. | 1932
F. E. Callaway, as administrator of the estate of B. C. Arnold, deceased, brought an equitable suit for injunction and other relief against W. B. Arnold, C. J. Arnold, Mrs. S. F. Arnold, and the Washington Loan and Banking Company. The petition was duly sanctioned, and a temporary restraining order granted. The defendants, except the Washington Loan and Banking Company, which was a nominal party only, filed an answer denying the legality of the appointment of Callaway as administrator. At the hearing evidence was introduced by both parties, and the court rendered a judgment which, in substance, held that the appointment of Callaway was void, and therefore an injunction was refused. To this judgment the plaintiff excepted.
The court ruled that the controlling question in the case was whether or not the appointment of the plaintiff, Callaway, as administrator of the estate of B. C. Arnold, was a legal appointment; and held, after consideration, that it was not a legal appointment, and that the order appointing him as administrator was void. Whether the appointment was legal, or whether the judgment appointing the administrator was void, is the only question brought before this court for review by the error assigned upon the judgment of the court. It appears from the pleadings and the undisputed evidence, that, some time after the death of B. C. Arnold, Mrs. Dempie Arnold Blackmon filed an application for administration of the estate of her deceased father, B. C.- Arnold, who died on January 24, 1930. She testified at the hearing that her mother was too feeble to be appointed, and she was 78 years old, but she had no objection to her mother being appointed; that she petitioned the court to appoint herself, “in order to get something started.” To the application of Mrs. Blackmon Mrs. Sarah F. Arnold, the widow of B. C. Arnold, filed a caveat, and in connection with it prayed that she be appointed administratrix, claiming that as the widow of the deceased she was entitled to be appointed, “or to nominate the administrator.” After a hearing the court sustained
On December 18, 1931, about ten days after the order was passed appointing Mrs. Arnold administratrix, R. O. Barksdale, as ordinary, wrote to the attorney for Mrs. B. C. Arnold, and in the letter stated that the appointment of Mrs. Arnold as administratrix “was done on the 7th inst., and now it is the 18th, and she has not qualified, and no reason for not doing so has been given to the court. This delay is not in keeping with the tacit understanding between applicant for letters and the caveator, and the delay is injurious to the interest of some of the heirs at law of the deceased, one of whom is the applicant. Therefore notice is given you as attorney for the caveator that if she, Mrs. B. C. Arnold, does not qualify as such administrator within ten days from this date, another administrator will be appointed by the court.” The adminis
Under the facts shown in this record, the court did not err in holding that the appointment of Callaway was void. Conceding that the matter of the appointment was continued from the December, 1931, term to the February, 1932, term, the court could not have made the appointment without giving notice to the heirs
“In the granting of letters of administration of any kind, the following rules shall be observed, the applicant being, in all cases, of sound mind, and laboring under no disability:
“1. The husband or wife surviving, irrespective of age, shall be first entitled.
“2. The next of kin, at the time of the death, according to the law declaring relationship and distribution, shall be next entitled; but if the party died testate, the person most beneficially interested under the will shall have the preference. Belations by consanguinity shall be preferred to those by affinity.
“3. If there be several of the next of kin equally near in degree, the person selected in writing by a majority of those interested as distributees of the estate, and who are capable of expressing a choice, shall be appointed.”
It might well have been that these heirs of the estate might have selected some one to be appointed, if they had been given notice of Mrs. Arnold’s failure to qualify. And no notice was served upon them. Treating notice to the attorney of Mrs. Arnold as notice to her, Mrs. Arnold, the first appointee, alone had notice. In section 3965 of the Code it is provided: “If, from any cause, an estate be unrepresented and not likely to be represented, the ordinary may vest the administration in the clerk of the superior court of the countjr, or any other person whom he may deem fit and proper — a citation being first published for four weeks, as in other cases; and such clerk, if appointed, shall be compelled to discharge the duties of the office.” The interest taken by the heirs in this estate, considering the fact that one of them, Mrs. Blackmon, had actually made application to be appointed administratrix, indicates that there was no likelihood that the estate would be left unrepresented. At any rate, the distributees were entitled to such notice as would give them an opportunity of making application to be appointed administrator, or of selecting one to be administrator. At any
Judgment affirmed.