7 S.E.2d 614 | Ga. Ct. App. | 1940
Lead Opinion
1. The estate of a decedent, as a general rule, is not liable for tortious acts of an administrator or executor, committed in the course of the administration. The allegations of the petition in the present case bring it within this general rule.
2. Money received by an executor, to which as executor he is not entitled, as here alleged, can not, under the law, become a part of the decedent's estate. The statute requires that the bond of an administrator shall be conditioned for the faithful discharge of his duty as administrator as required by law. The obligation of the surety is accessory to that of his principal; and if the latter from any cause becomes extinct, the former shall cease of course.
3. Under the law and the allegations of fact, the petition did not set out a cause of action against either of the defendants.
1. It will be observed from the above statement that the plaintiff based his action against the defendants on alleged fraud of the executor in procuring a puffer to bid against him at the sale, with the secret understanding and agreement that the puffer was not to be bound by his bid, thus compelling the plaintiff to pay $2050 more for the land than he otherwise would have had to pay. It has been held, both by the Supreme Court and this court, that as a general rule the estate of a decedent is not liable for tortious acts committed by an administrator or executor in the course of the administration of the estate. Bankof Newton County v. American *827 Bonding Co.,
2. A surety on the bond of an administrator or executor is liable only for acts of nonfeasance or misfeasance on the part of such representative in respect to his official acts. The statute requires that the bond of an administrator shall be conditioned for the faithful discharge of his duty as administrator as required by law; and the law authorizes the administrator to represent the decedent's estate only in doing lawful acts. Money received by an executor, to which as executor he is not entitled, as alleged in the present case, can not, under the law, become a part of his decedent's estate. National Surety Co. v. Wages, supra. "The obligation of the surety is accessory to that of his principal, and if the latter from any cause becomes extinct, the former shall cease of course, even though it is in judgment." Code, § 103-102.
3. Applying the above-stated principles of law to the allegations of the plaintiff's petition, the petition did not set out a cause of action against the defendants. Therefore the court did not err in sustaining the general demurrer of the Fidelity and Casualty Company of New York, surety on the executor's bond, but did err in overruling the general demurrer of S. B. Watson as executor of the estate of W. A. Watson.
Judgment affirmed on the main bill of exceptions, andreversed on the cross-bill. Stephens, P. J., concurs.
Dissenting Opinion
I am of the opinion that the petition set forth a cause of action against the executor and his bondsman. While it is true that as a general rule the estate of a decedent is not liable for tortious acts committed by an administrator or executor in the course of the administration of the estate, the very statement that the principle is true as a general rule implies that there are exceptions. One exception is that the estate is liable if the representative commits a tort in the performance of an act authorized by law, which results in benefit to the estate. Miller v. Smythe,