Bailey v. Mcalpin

• Decision Date: 17 October 1904
• Citation: 48 S.E. 699,121 Ga. 111
• Parties: BAILEY et al. v. McALPIN.
• Court: Georgia Supreme Court

48 S.E. 699

121 Ga. 111

BAILEY et al.

v.McALPIN.

Supreme Court of Georgia.

Oct. 17, 1904.

EXECUTORS AND ADMINISTRATORS—TEMPORARY LETTERS—COUNTY ADMINISTRATOR— LIABILITY ON BOND.

1. Civ. Code 1895, § 3359, relating to the appointment of temporary administrators, and section 3381, as to the appointment of the county administrator, relate to diametrically opposite conditions.

2. Section 3359 provides for temporary letters until the one regularly entitled to permanent letters under section 3367 can be appointed.

3. Section 3381 provides for the appointment of the county administrator when it is not likely that any one else will apply. He then qualifies, not temporarily until another is appointed, but permanently, and because no one else will be appointed.

4. Before the county administrator, as such, can be granted letters, the estate must not only be unrepresented, but not likely to be represented, and this fact must appear after citation has been published once a week for four weeks, as in other cases.

5. The sureties on the bond of a county administrator are not responsible for acts or defaults committed by him under an appointment as temporary administrator.

(Syllabus by the Court.)

Error from City Court of Savannah; T. M. Norwood, Judge.

Action by Henry McAlpin, ordinary, for use, etc., against P. L. Bailey and others. Judgment for plaintiff, and defendants bring error. Reversed.

Fripp was appointed county administrator of Chatham county, Bailey and Harrison signing his bond as sureties. Soon thereafter Fripp was appointed temporary administrator of Kelley, the order reciting that be had applied for permanent letters, but that the time required by law before they could issue had not yet expired, and that in the meantime it was necessary that some one should be appointed to collect and take charge of the goods and chattels of the deceased. Subsequently Fripp resigned as county administrator, and Wade was appointed as his successor, and as county administrator applied for and was granted permanent letters of administration on the estate of Kelley. He thereupon made demand upon Fripp for money collected by the latter as temporary administrator, and shown by his returns then.to be in his possession. This demand not having been complied with, he brought suit against Fripp and the sureties on Fripp's bond as county administrator The sureties moved to dismiss the suit because it appeared from the petition that there was no permanent administration by Fripp on the estate of Kelley. The motion was overruled, and the sureties excepted.

Osborne & Lawrence and Twiggs & Oliver, for plaintiffs in error.

W. H. Wade, for defendant In error.

LAMAR, J. The law in reference to county administrators was not intended to affect other provisions of the Code. It was rather supplementary, and intended to provide for an officer who should be bound to qualify when, because of the meager assets, inability to give bond, or want of resident heirs or of persons interested, the estate was likely to be unrepresented. But there was no presumption that the estate would...