176 Ga. 692 | Ga. | 1933
In this case the trial court sustained a general demurrer to the petition and dismissed the action. On exception the Court of Appeals ruled: “‘The probate of a will containing defamatory matter is a publication thereof, creating a cause of action against the estate of the testator, which cause of action is considered to have accrued subsequent to the testator’s death; hence it is not abated by his death.’ Under this rule the petition in this case sets out a cause of action for libel, and the trial judge erred in sustaining the general demurrer to the petition.” On application for certiorari error is assigned upon this judgment. It is urged that the principle ruled and upon which the judgment of reversal was based was erroneous, for the following reasons: “(a) The common-law maxim actio personalis moritur cum persona applies, and the right of action, if any ever existed, abated upon the death of the testatrix, (b) The publication of libelous matter in a will, by filing the will in the office of the ordinary for probate or by probating the same, is absolutely privileged, (c) An executor can not commit a tort for which the estate he represents may be held liable, unless pecuniary advantage results to the estate by reason of his tortious act. (d) If, as stated by the Court of Appeals, the cause of action is considered to have accrued subsequently to testatrix’s death, it could not have been committed by her; if considered as committed by the executor of her will, the estate could not be held liable, for there was no pecuniary advantage to it; and there is no other juridic person who could have committed the tort.”
It is declared in the Civil Code, § 4428: “A libel is a false and malicious defamation of another, expressed in print, or writing, or ’ pictures, or signs, tending to injure the reputation of an individual, and exposing him to public hatred, contempt, or ridicule. The publication of the libelous matter is essential to recovery.” It is declared in the Penal Code, § 340: “A libel is a malicious defama
In the early case of Parrott v. DuBignon, T. U. P. Charlton, 261,
In Callaway v. Livingston, 28 Ga. App. 453 (111 S. E. 742), it was said: “Nor can there be any recovery, under the allegations of the petition, for the acts of negligence alleged to have occurred after the death of White. . . Neither executors nor administrators can by any tortious act create liability against the estate represented by them, except where pecuniary advantage results therefrom to the benefit of the estate. . . It follows, from what has been said, that any cause of action founded upon acts of negligence on the part of White, his agents or representatives, in failing
Judgment reversed.