12 S.E.2d 877 | Ga. | 1941
A petition by an administratrix, to enforce against the estate an alleged contract by the decedent to adopt her as his child and to make a will leaving all of his property to her, was subject to general demurrer.
Motion to amend petition, by adding averment and prayers relative to the alleged contract, is denied.
Among other general and special grounds, a demurrer by the defendant heirs included the general ground that "the said suit proceeds by and on behalf of an administratrix of the estate of the deceased, for the express purpose of procuring a decree, not for the direction as to the distribution of the estate alone, but to accomplish a purpose adverse to the interest of the administratrix of said estate as such, and solely for the purpose of advancing the interest of [petitioner] as an individual." In sustaining the general demurrer, without passing on the special grounds, the court held that under the averments of the petition, and the decision of this court in Boles v. Eddleman,
2. An executor or administrator, after acceptance of the trust, can not claim adversely thereto. Harris v. McDonald,
3. Under the preceding rules, and irrespective of the reasons assigned by the trial judge for his decision, or questions raised by other grounds of demurrer by the defendant heirs to this petition by an administratrix, seeking to enforce against the estate an alleged contract by the decedent to adopt the petitioner and to make a will leaving all of the decedent's property to her, the petition was subject to the ground of general demurrer that it was brought, "not for direction as to the distribution of the estate alone, but to accomplish a purpose adverse to the interest of the administratrix of said estate as such, and solely for the purpose of advancing [her] interest as an individual." Therefore the court did not err in dismissing the petition.
4. The motion in this court for leave to amend the petition, in the event that the judgment of dismissal should be affirmed, by adding an averment and prayers relative to the alleged contract to make a will, must be denied, since obviously the desired amendment would not rectify the fatal defect stated.
Judgment affirmed. All the Justices concur. *467