46 Ga. App. 129 | Ga. Ct. App. | 1932
On May 26, 1931, Phoenix Mutual Life Insurance Company filed a petition in the court of ordinary of Dodge county to have an administrator de bonis non appointed upon the estate of Moses J. W. Daniel. A caveat thereto having been filed by Daniel’s heirs at law, the ease was, by agreement of the parties, passed upon by Judge Eschol Graham, judge of the superior court 'of Dodge county, without the intervention of a jury. On March 19, 1932, Judge Graham rendered a judgment in favor of the caveators, and the correctness of that judgment is the only question for determination by this court. The nature of the pleadings in the case and the controlling facts appear from an agreed statement of facts, which' is substantially as follows:
Moses J. W. Daniel died intestate, a resident of Dodge county, Ga., on September 4, 1925. • W. H. Clark was properly appointed administrator of said estate on May 12, 1926. At the time of the death of the said intestate he was indebted to Phcenix Mutual Life Insurance Company, and there is still a balance due on said in
There was introduced in evidence the “renewal agreement” referred to in the agreed statement of facts. We quote from this “renewal agreement” as follows:
“Whereas Moses J. W. Daniel did on the 16th day of June, 1920,
“Estate of Moses J. W. Daniel. (Seal.)
“By Jno. W. Daniel (Seal), atty. in fact.”
We have studied with much interest the able brief of counsel for the plaintiff in error, and have carefully read the case of McNair v. Howie, 123 S. C. 252 (116 S. E. 219), and like cases. Nevertheless, we are satisfied that it would be contrary to our law for a court of ordinary, with a valid, outstanding judgment of dismissal on record, stating that the estate had been fully administered, to render a second solemn judgment to the effect that the estate had not been fully administered, and that, therefore, it was necessary to appoint an administrator de bonis non to administer the unadministered part of said estate. See, in this connection, Civil Code (1910), §§ 4089, 4090, 4091. We hold that his honor of the trial court did not err in sustaining the caveat and denying the application for the appointment of an administrator de bonis non upon the estate of Moses J. W. Daniel.
Judgment affirmed.