41 Ga. App. 610 | Ga. Ct. App. | 1930
E. E. Cook, as ordinary of Rockdale county, brought an action for the use of the Metropolitan Life Insurance Company, as creditor of the estate of W. T. Stanton, and numerous heirs at law of Stanton, against Charles Kennon Gailey, the duly appointed administrator of the estate, and the Maryland Casualty Company as surety on the administrator’s bond, to recover $2,660.98, alleged to have been in the administrator’s hands on December 18, 1925, “after payment of cost, expenses, and claims having priority.” It was also alleged in the petition that at the time of Stanton’s death he was indebted to the Metropolitan Life Insurance Company in the sum of $2,000, with interest “on a certain note” payable to the Atlanta Trust Company, and duly transferred and assigned to said life insurance company during the lifetime of Stanton.
On January 22, 1929, a jury found for the plaintiff, and on the verdict the court on the same day entered a judgment that the plaintiffs recover of the defendants, Charles K. Gailey, as administrator of the estate of W. T. Stanton, deceased, and the Maryland Casualty Company, as surety, the principal sum of $2,660.98, the further sum of $104.89, interest to date, with future interest on the sum of $484.17 at seven per cent. The exception is to the judgment overruling the defendants’ motion for a new trial.
Briefly stated, Gailey’s defense set up in his answer was that under the authority of an order of the court of ordinary, the land described in the loan deed held by the Metropolitan Life Insurance Company was sold by him at public outcry to J. W. Burns for $3,000, subject to the loan deed; that the said $3,000 was deposited in the First National Bank of Conyers to defendant’s account “as administrator of the estate of W. T. Stanton,” as was required by the Maryland Casualty Company; that as soon as he received said money he offered to pay the amount due the insurance company
The material parts of the answer of the Maryland Casualty Company are substantially as follows: “Said balance of $2,660.98 standing in the name of the administrator on December 18, 1925, in the First National Bank of Conyers, was reduced by legal payments allowed by law to the sum of $2,642.30, which was the amount standing to the credit of the administrator on April 17, 1925, the time of the failure and closing of said bank.” Said indebtedness of W. T. Stanton to the Metropolitan Life Insurance Company was secured by a first loan deed on described real estate, and, under the authority of an order of the court of ordinary, said land was sold to J. W. Burns on the first Tuesday in February, 1925, for $1,000. Immediately after the sale said Gailey and said Burns “ entered into a private agreement whereby the said Burns agreed to pay to Gailey the $2,000 indebtedness due the Metropolitan Life Insurance Company, and Gailey agreed to pay said sum to the agent of said company and secure the canceled loan deed; “that Gailey made a prompt tender of the full amount due on said loan deed to said Life Insurance Company at the office of its agent, the Atlanta Trust Company, but said agent advised him that it would be necessary to send to New York for the papers, and that if Gailey would return to Atlanta within five days the loan could be paid off; that at the expiration of five days Gailey made a similar tender, and was again told by Atlanta Trust Company that the papers had not arrived; that at” the expiration of another week Gailey made another tender of said money, and was again advised that the papers had not come; that Gailey then advised said agent that he would deposit said sum in the First National Bank of Conyers, where-it would remain intact until he was advised that the papers had arrived and were ready to be delivered; and that Gailey heard nothing further from said insurance company or its agent,, and said money remained in said bank intact “until the 17th day of April, 192-5, when said bank closed its doors and went into the
By an amendment to its original answer, allowed and filed January 21, 1929, the Maryland Casualty Company further pleaded: “If said $2,660.98 on deposit in First National Bank of Conyers in March, 1925, were assets of the Stanton estate, at that time $2,-176.81 of the funds was claimed under a lien by Metropolitan Life Insurance Company, leaving only $484.17 at that time for other creditors and the heirs; that the administrator, since March, 1925, has properly paid to creditors as follows: $10.76 for bond, $100 for attorney, and $85 for doctor, — making $205.34, and leaving $278.83 which ought to go to the heirs and next of kin. Maryland Casualty Company shows that since the $2,660.98 was deposited in First National Bank of Conyers, the administrator lias received a 30 per cent, liquidating dividend on same, amounting to $798.29, from which he paid the $205.34 to creditors, leaving in the hands of the administrator at present a balance of $592.95, which amount the administrator is willing to pay proper parties. Maryland Casualty Company shows that the administrator exercised due care and caution to preserve and administer the assets, and would have paid the $2,176.81 to the Metropolitan Life Insurance Company but for its delay and refusal to accept same, and its acquiescence in leaving the funds in the First National Bank of Conyers, thus causing it to be caught; and it is shown that judgment in this case should not be for more than $592.95 on hand, $278.83 of which, if .granted, ought to be reserved for the heirs and next of kin.”
On January 21, 1929, the judge passed an order making T. H. Marston, ordinary, plaintiff in the place of E. F. Cook, ordinary, who had died.
After a careful examination of the brief of evidence in this case, we have reached the conclusion that there was evidence authorizing the jury to conclude that the administrator deposited the estate’s money in a bank which he, in the exercise of ordinary diligence, should have known was not a safe depository. Therefore we do not think that there is merit in the general grounds of the motion for a new trial.
Judgment affirmed.