Pollock v. Cox

Jul 25, 1899
Reporters:
, ,
Before:
Fish
Fish, J.

1. While the present action was brought in the name of Cox, ordinary, the real party at interest therein is J. W. Bates, as temporary administrator of Alice V. Bates, who seeks-to hold the defendants liable upon a bond given to the ordinary. The petition filed by the .plaintiff specifically alleges that these defendants are practically insolvent, and that, in order to render productive any judgment which may be obtained against-*433them, the necessity exists of enjoining them from fraudulently disposing of certain personalty in their hands derived from the-estate of one Aurelia Pollock, from whom Alice V. Bates inherited one third of the property in question. Clearly, under the facts alleged‘, the plaintiff was entitled to invoke the equitable remedy of injunction as an incident to the more substantial relief sought. As to the authority of a temporary administrator to take all necessary steps looking to the collection and preservation of all personal assets of his intestate, see Civil Code, §3361, and Mason v. Atlanta Fire Co., 70 Ga. 604, and cases cited.

2, 3. It appears that one of the defendants, Josiah Mac Pollock, took out letters of administration on the estate of the said Aurelia Pollock, giving as ‘security on his bond Georgia McGregor, the other party named as defendant in the plaintiff’s petition. The charge is made therein that, colluding together, these defendants entered into a scheme whereby the said Georgia should set up the claim that she received as a gift from Aurelia Pollock, prior to the latter’s death, all the property of which she was possessed; that in pursuance of this collusive scheme, Pollock, after qualifying as administrator, falsely made to the ordinary of the county a return showing that the estate he represented was without assets; and subsequently, by falsely representing to the ordinary that he had fully administered said estate, fraudulently procured an order of discharge. It is further alleged, in this connection, that the wilful failure of Pollock to take possession of his intestate’s assets and administer the same constituted a breach of his bond, for which both he and the surety on his bond were liable in damages. It was u^ged in the court below, and insisted here, and this order of discharge was a bar to the present action. If obtained by a fraud practiced upon the ordinary, however, as alleged, we think not. Indeed, section 3511 of our Civil Code expressly declares that a discharge obtained by an administrator under such circumstances is void. See also Christian v. Westbrook, 75 Ga. 852. Nor is it necessary to make a motion in the court of ordinary to set aside ■ such an order, as a condition precedent to bringing an action such as *434the present proceeding. On the contrary, a court exercising equity jurisdiction would have power to decree that such order be vacated, upon proof that it was fraudulently procured. Civil Code, §§ 3987, 5370.

As the present proceeding was instituted within three years from the granting of the order of dismissal, certainly the same could not operate as a bar to the action. Civil Code, §3764.

4. Again, it was insisted by the defendants, that‘as no administration upon the estate of Mrs. Bates had been had prior to the order of dismissal, and as she was not at that time in life, there was no one with whom Pollock could make settlement for her share of the estate he represented, and therefore there had been no breach of his bond. In reply to this contention, it may be remarked that‘under the allegations of the plaintiff’s petition, Pollock committed a breach of his bond by falsely representing that he had fully administered the estate and fraudulently procuring his discharge accordingly. In fact, a previous breach had been committed in wilfully neglecting to take any steps whatever to reduce to his possession, as administrator, the assets of his intestate’s estate. Furthermore, his fraudulent conduct in permitting and assisting the surety on his bond to appropriate these assets under a pretended claim of right practically amounted to a conversion on his part of trust property.

5. Prior to the filing of the present suit, J. W. Bates had, in his individual capacity, applied for letters of administration de bonis non upon the estate of Mrs. Pollock; and, upon a caveat interposed by Pollock to this application, the issue was raised as to whether, in point of fact, the property now in controversy really belonged to her. at the time of her death and constituted a part of the estate to be administered. The issue was decided adversely to Bates; but surely it can not be seriously insisted that this adjudication estopped him, in his representative capacity as the temporary administrator on the estate of Mrs. Bates, from instituting the present proceeding and therein asserting her right to force the defendants to a trial upon the same issue.

Judgment affirmed.

All the Justices concurring.