177 Ga. 763 | Ga. | 1933
The Court of Appeals certified two questions to the Supreme Court. (1) “Is an order and judgment of a court of ordinary allowing the duly appointed and regularly qualified executor of an estate to resign, and the appointing of another person as administrator de bonis non cum testamento annexo> valid where it appears on the face of the record that no notice was given to the next of kin or to the persons most beneficially interested under the will, but that the proceedings for sueh resignation and appointment of a successor to such executor were in effect ex parte, and that the petition for such resignation and appointment was filed, the hearing had thereon, and the order passed, all on the same day?” (2) Do the provisions of the Civil Code (1910), § 3892, which relates to the powers, duties, and liabilities of executors, apply to § 4095, which relates to tire resignation of administrators, etc., “so that the next of kin of a testate are entitled to the same notice as the next of kin of an intestate; and that the next of kin who are also legatees under the will are entitled to formal written notice of the resignation of an executor and the appointment of his successor, by reason of § 4095 ?”
We reverse the order of these questions and answer the second question before answering the first, because the answer to the first will be determined by the answer to the second. In view of the similarity of the office of an administrator and an executor, and the broad language of § 3892, it must be held that the provisions of § 3892 apply to § 4095. In the main, an executor and an administrator are appointed for the same purposes, and they perform the same duties. In some respects the purposes of their appointments are somewhat different, and their duties subject to different conditions and controlled by different rules; but an executor and an administrator are appointed or designated for the purpose of taking charge of and administering the estate of a decedent. They are
But the language of § 3892 and of § 4095 constitute the firm ground upon which the court bases its opinion that the provisions of § 3892 are applicable to § 4095. The language of § 3892 is as follows: “All the provisions of this Code with reference to administrators of estates, prescribing the commissions allowed to them, their duties, powers, and liabilities, the mode of effecting sales, of making and receiving titles to property sold or purchased by their
We do not overlook this fundamental distinction between an executor and an administrator, that the former is selected by the testator, and the latter is appointed by the court, generally on the selection of the persons interested in the estate. But with certain
In view of what is said above, we reach the conclusion that the provisions of § 3892 are applicable to § 4095; and that the next of kin of a testate are entitled to the same notice as the next of kin of an intestate, and that the next of kin who are also legatees under the will are entitled to the formal written notice of the resignation of an executor and the appointment of his successor. In addition to the reasons briefly adduced, the ruling in Head v. Bridges, 67 Ga. 227, impels us to the same conclusion. In that case an executor made application to resign. The application was made in December, 1868, and he named a suitable person as qualified- and entitled and willing to accept the trust. The order accepting the resignation and appointing the successor recited that the “widow, etc., and next of kin of testator aforesaid, has been cited to appear at this term.” It appeared that there were minor children and legatees. The recital in the application that the widow had been cited was untrue on its face, because only six days, at the most, elapsed between the date of the filing of the application and the date of the order accepting the resignation and appointing the successor. This court said: “The application shows upon its face that it was drawn in December, 1868, certainly, and almost quite as certainly on the very day the court met. Not only so, but it shows that no one had any notice or was cited to appear except Mrs. Bridges, the coexecutrix of the applicant. These facts appearing on the face of the record itself, was not the whole proceeding a mere nullity, and should it not have been so treated by the court ? That the application was made in December, 1868, appears from the very words used
What has been said answers the second question. And in view of that answer, the first question must be answered in the negative.