Dame v. McGowen

164 Ga. 332 | Ga. | 1927

Hill, J.

1. “When the court of ordinary has granted letters testamentary, administration or guardianship, to a person entitled and capable of discharging the duties of the trust, no new appointment can be made until the former appointment is vacated by death, removal, or in some other way.” Justices v. Selman, 6 Ga. 432 (4); Gilbert v. Stephens, 106 Ga. 753 (32 S. E. 849); Dickerson v. Bowen, 128 Ga. 122 (3) (57 S. E. 326) ; Knowles v. Knowles, 132 Ga. 806 (2) (65 S. E. 128).

2. Accordingly, where the court of ordinary has appointed one as administrator upon an estate, and such administrator has neither died nor been removed from such trust in any way; and where application is made to the ordinary of the same county, by one claiming to be next of kin to the same decedent, to be appointed administrator, and notice is published of such application, and on the date of the hearing of the application a caveat is filed to such appointment by one claiming also to be next of kin, and the ordinary appoints the applicant on condition of his giving bond in a certain amount, and provides that on failure to give bond the caveator will be appointed upon his giving the bond required; and where in pursuance of such order neither the applicant nor the caveator gives the bond required and does not qualify as such administrator, and the ordinary without further notice appoints the clerk of the superior court as administrator upon the estate of the decedent, such appointment is void, in the absence of the death, discharge, or removal for any cause of the administrator originally, appointed.

No. 5641. June 20, 1927.

3. Where in the circumstances just stated such newly appointed administrator applies in due form for an order to sell certain real estate of the decedent for the purpose of paying the debts and for distribution among the heirs, and the order is granted and the land is duly advertised and sold, the purchaser at such sale acquires no title to such land.

4. Where in these circumstances the widow and minor children of the decedent, as his heirs at law, file an equitable petition against the purchaser at such sale, to cancel the deed, alleging that there were no debts owing by the decedent at the time of his death, and that they had permission of the administrator, who had never been discharged or removed, to bring the suit, and praying that the possession of the property conveyed by such deed be decreed to be in and delivered to the plaintiffs, such petition alleged a cause of’ action; and the evidence in support thereof being substantially in accord with the allegations of the petition, . a verdict finding for the plaintiffs was authorized.

5. Assignments of error on the admission of certain evidence consisting- of certain copies from the records of the court of ordinary, and the testimony of the clerk of the court of ordinary to the effect that the records of that court did not show or contain anything relative to the removal or discharge of the administrator originally appointed, are without merit.

6. The court did not err in overruling the motion for new trial.

Judgment affirmed.

All the Justices concur. Morgan & Johnson, for plaintiffs in error. Folks Huxford and Parker, Parker & Quarterman, contra.