White v. Spillers

85 Ga. 555 | Ga. | 1890

Simmons, Justice.

Spillers, as next friend of Lillie Spillers, filed his petition against White, to enjoin him from administering the estate of Murchison, and alleged therein that White was acting as such administrator without any authority of law. The case was submitted to the presiding judge without the intervention of a jury. The defendant introduced the 3d and 4th items of the will'of Murchison. By the 3d item Murchison’s wife, Mary, was appointed executrix, and by the 4th item it was directed that she should hold the trust until the testator’s youngest child was of age, or until her death; in which event she should appoint a successor in the management of the estate; and in the event of a failure to make such appointment, the ordinary of the county should make it. The defendant also introduced an order passed at the September term, 1881, of the court of ordinary; which order recited that

“It being represented by Mary Murchison, executrix of the last will and testament of K. B. Murchison, deceased, having made application for resignation of said trust on account of feeble health, and nominated H. C. White, of Crawford county, to be appointed administrator cum testamento annexo of said estate, and citation having issued according to law, . . and no objections being filed by this term of the court, it is ordered that H. C. White secure the usual letters of administration, [to] be issued when he gives the proper bond in the sum of $4,000, and takes the oath required by law, and that he have till the next term of court to perfect said bond.”

The defendant introduced the bond given by White and his securities to the ordinary of said county in the sum of $4,000, the condition of which bond was stated to be “that if the above bound H. C. White, administrator of the estate, real and personal, of Mary Murchison, deceased,” etc. This bond was dated October 3d, 1881. The defendant also introduced the letters issued to White, which authorized him to administer the estaté of Mary Murchison, who, the letters recited, had lately died intestate, and of whose estate White was appointed administrator with the will annexed. These letters were also dated October 8d, 1881. It was admitted that Mary Murchison, executrix of K. B. Murchison, was in life at the time the bond was given and the letters issued to II. C. White, and that this fact was known to the securities on White’s bond. The court below adjudged that White was not the legal representative of the estate of K. B. Murchison, and perpetually enjoined him from selling the land of the estate, collecting the rents or in any way interfering with or attempting to administer the estate. To this decision White excepted.

It is argued here that the judgment of the court was right, because the bond given by White as administrator was conditioned to properly administer the estate of . Mary Murchison, not that of K. B. Murchison, and that the letters of administration were issued to him as administrator of Mary Murchison. Under the facts of this ease it appears that this was simply a misnomer— a mistake of the clerk in writing the name of Mary Murchison instead of that of K. B. Murchison; for we find in the record that at the September term, 1881, Mary Murchison tendered her resignation as executrix of K. B. Murchison, on account of feeble health, and suggested the appointment of II. C. White as administrator with the will annexed of K. B. Murchison, and that at the same term White was accordingly appointed as such administrator, and that the order of appointment gave him until the next term to perfect his bond; and that at the next term the bond was given by White and the letters were issued by the ordinary. It further appears that Mary Murchison was in life at this time, and that this fact was known to the securities on the bond.

Section 2505 of the code is as follows: “Every administrator, upon his qualification, shall give bond, with good and sufficient security, to be judged of by the ordiuary, in a sum equal to double the amount of the estate to be administered; such bond shall be payable to the ordinary for the benefit of all concerned, and shall be attested by him or his deputy, and shall be conditioned for the faithful discharge of his duty as such administrator, as required by law. A substantial compliance with these requisitions for the bond shall be deemed sufficient, and no administrator’s bond shall be declared invalid by reason of any variation therefrom, as to payee, amount or condition, where the manifest intention was to give bond as administrator, and a breach of his duty as such has been proved.”

We think, therefore, that under this section, the fact that the name of Mary Murchison was used in the bond for that of E. B. Murchison, would not release the secmities therein. It was a substantial compliance with this section of the code. The manifest intention of White was to give the bond as administrator of E. B. Murchison, and the manifest intention of the securities was to sign such a bond. He was appointed by the judgment of the court of ordinary administrator with the will annexed of E. B. Murchison; and while the phraseology of that judgment is badly expressed, it is sufficient to constitute White the administrator of E. B. Murchison; and the fact that the bond recites the name of Mary, instead of E. B., does not make it invalid as an administration bond on the estate of E. B. Murchison. If this litigation continues, either party, by proper amendment to the pleadings, can have the bond reformed, and the ordinai’y at any term of his court can pass an order correcting the. letters of administration in this particular.

Section 167 of the code provides: “Whenever any officer required by law to give an official bond acts under a bond which is not in the penalty payable and conditioned, nor approved and filed as prescribed by law, such bond is not void, but stands in the place of the official bond, subject, on its condition being broken, to all the remedies, including the several recoveries, which the persons aggrieved might have maintained, on the official bond.” While this section does not apply to bonds of administrators, etc., we cite it for the purpose of showing the intention of the legislature where defective bonds have been given by public officers; and we see no reason why the spirit of this section should not apply in eases like the one under consideration, where it was the intention of all the parties to give the proper bond, and a mistake was made by the clerk in writing one name for the other.

We think, therefore, that the court erred in holding that White was not the administrator of K. B. Murchison, and in enjoining him from acting as such.

Judgment reversed.