56 Ga. App. 59 | Ga. Ct. App. | 1937
Moses E. Pass and his wife, Nara E. Pass, executed a joint will, which provided in part as follows: “It is out* joint and several will and desire that the survivor shall immediately become possessed of any and all property that the other has or may have at death, whether it be personal property or real estate or of whatsoever nature, to have and hold the same for and during the life of the survivor, and at the death of the last of us then to go to our children share and share alike.” The will further provided (pertinent to the question here presented) : “We hereby nominate and appoint Bruce B. Pass, who shall, in connection with the survivor, act as executor of this our joint and several will, and at the death of the last survivor shall become sole executor of this our joint and several will.” J. G. Pass, one of the children, brought this proceeding in the court of ordinary, setting forth the death of Moses E. Pass, and that Bruce Pass, the duly qualified executor of the will, was mismanaging the estate in that: “(a) He has failed to take charge of the assets of the
We do not think it necessary to set out the evidence adduced on the trial in the superior court. For the purpose of this decision we shall assume that the evidence sustained the allegations of the petition, that the executor named in the will failed to take possession of the assets of the estate, but allowed Nara E. Pass to take possession thereof, and that certain acts of waste are being committed by her. We are of the opinion that the judge of
Even conceding, without deciding, that on the appeal it was necessary for the defendant to file a written defense to the application to require him to give bond, the plaintiff will be held to have waived such failure by proceeding to trial and introducing evidence.
Judgment affirmed.