Collins v. Henry
| Decision Date | 11 July 1923 |
| Docket Number | 3332. |
| Citation | 118 S.E. 729,155 Ga. 886 |
| Parties | COLLINS v. HENRY. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The petition set out a cause of action for some of the relief sought.
On the face of the petition, the action was not subject to demurrer on the ground that it was barred by the statute of limitations.
The court should have sustained the special demurrer, and the case is affirmed, with direction that the judgment be modified to that extent.
Additional Syllabus by Editorial Staff.
There is no duty resting on temporary administratrix to make returns to the ordinary, or to account to the heirs for moneys collected by her, or to pay creditors.
In suit by permanent administrator against executrix of deceased temporary administratrix for accounting for property received by temporary administratrix, petition held to be construed as charging that some assets of the estate of plaintiff's intestate came into defendant's possession.
Under Civ. Code 1910, §§ 3657, 3929, 3933-3937, and 3972, temporary administratrix had nothing to do with realty, and if she collected the rents she did so as an individual, and, though liable to action by the heirs, was not liable to permanent administrator.
Within Civ. Code 1910, § 3935, providing for appointment of temporary administrator to collect and take care of deceased's effects, "effects" means personalty and rents accruing after intestate's death are no part of his effects.
Within Civ. Code 1910, § 4376, providing that time between death of person and representation on his estate shall not be counted against his estate, appointment of temporary administratrix is not "representation," which will start limitations running.
A temporary administrator is a mere custodian, to hold funds of the estate until permanent administrator is appointed.
Error from Superior Court, Bibb County; H. A. Mathews, Judge.
Suit by Horace Henry, administrator, against L. H. Collins executrix. Judgment for plaintiff, and defendant brings error. Affirmed with direction.
In suit by permanent administrator against executrix of deceased temporary administratrix for accounting for property received by temporary administratrix, petition held to be construed as charging that some assets of the estate of plaintiff's intestate came into defendant's possession.
Horace Henry, as permanent administrator of the estate of W. L. Henry, filed at the November, 1919, term of Bibb superior court, a petition against Mrs. L. H. Collins, as executrix of the will of Mrs. C. A. Henry, alleging that W. L. Henry died in July, 1898, leaving in force two policies of life insurance, aggregating $7,504,36, payable to his estate; that he owned at the time of his death two described parcels of real estate and an undivided half interest in another parcel; that his wife, Mrs. C. A. Henry, was appointed temporary administratrix upon his estate; that as such she collected, during the latter part of 1898, the moneys upon the life insurance policies mentioned, and that up to the time of her death, September 25, 1918, she collected the rents, issues, and profits upon the real estate mentioned, amounting to $4,000 or other large sum; that she never made any returns as temporary administratrix to the ordinary of Bibb county, and has never accounted to the heirs of W. L. Henry for any of said moneys so collected; that no permanent administration was had upon the estate of W. L. Henry until after the death of the temporary administratrix, Mrs. C. A. Henry; that said moneys so coming into the hands of Mrs. Henry belonged to the estate of W. L. Henry, and were held by her as temporary administratrix until the appointment of a permanent administrator for the benefit of the heirs of W. L. Henry; and that petitioner, as permanent administrator, is equitably entitled to said moneys or their proceeds, for the purpose of distribution to the heirs of W L. Henry, who are legally and equitably entitled thereto. The prayers are that the defendant be compelled to account for the insurance moneys, and the rents, issues, and profits of the real estate, received by her testatrix, and that petitioner have judgment for the same, with interest, for process, and general relief.
At the April, 1922, term of the court the defendant orally moved to dismiss the petition, because the entire cause of action set forth was barred by the statute of limitations, and also moved to strike from the petition the paragraphs alleging that no permanent administration was had upon the estate of W. L. Henry until after the death of Mrs. C. A. Henry, when petitioner was appointed permanent administrator, and also the paragraphs alleging the facts above set forth in connection with the collection of the insurance moneys. The plaintiff tendered an amendment to the petition, alleging that Mrs. C. A. Henry was the mother of all of the heirs of W. L. Henry; that most of these heirs lived with her for a long period of time after her appointment as temporary administratrix; that they all reposed the greatest trust and confidence in her, and did not know and were never informed by her that their father left any property or money held by her as a part of his estate, "until within the last year or two before the death of their mother"; that on account of the fiduciary relation existing between said heirs and the mother, as temporary administratrix, it was her duty to disclose to them the facts concerning the property and money of which their father's estate consisted, and which came into her possession as temporary administratrix. The defendant moved to strike the paragraph of the amendment in which these allegations were set forth, on the ground that the same were irrelevant and immaterial, and did not set forth any legal ground or excuse for the long delay in bringing the action. The motion to dismiss was overruled, and error was assigned on exception taken pendente lite.
During the same term of court the defendant filed a general demurrer in the nature of a motion to dismiss, upon the grounds that no cause of action is set forth, and the facts alleged do not show any right in plaintiff to the relief prayed, that the petition shows that each and every demand set forth is barred by the statute of limitations, and that the paragraphs of the petition setting forth the allegations relative to the collection of insurance moneys should be stricken on the ground that said demand is barred. She demurred specially to the paragraph of the amendment above mentioned, for the same reasons forming the basis of the oral motion to strike the same as set forth above. The court made the following order:
"It seems well settled that the executor of an administrator who commits waste of the estate may be sued for such devastavit," but
Error was also assigned upon this judgment.
A. L. Miller and Brock, Sparks & Russell, all of Macon, for plaintiff in error.
Strozier & Deaver, of Macon, for defendant in error.
The petition, as amended, set out a cause of action for some of the relief sought, and therefore was not subject to be dismissed on general demurrer. It is a suit by the permanent administrator of W. L. Henry against the executrix of the estate of Mrs. C. A. Henry, deceased, temporary administratrix of W. L. Henry. It is settled that the executrix of one who was temporary administratrix of another's estate is not the representative of the original estate. The purpose of the suit is to require an accounting by the estate of the temporary administratrix. It is true that the petition does not allege that the defendant executrix came into the possession of the W. L. Henry estate, of which Mrs. Henry was temporary administratrix. It does allege that the temporary administratrix never made any returns as temporary administratrix to the ordinary of Bibb county, and has never accounted to the heirs of W. L. Henry for any of said moneys so collected, and it also alleges that:
"No permanent administration was had upon the estate of W. L. Henry until after the death of the temporary administratrix, Mrs. C. A. Henry."
There is no duty, under the law, resting upon a temporary administratrix to make returns to the ordinary, and she could not account to the heirs of W. L. Henry for any of the moneys of the latter's estate collected by her, nor could she pay creditors. In view of the fact that this is an equitable proceeding, the petition, properly construed, charges the executrix of Mrs. Henry with the possession of some of the assets of the estate of W. L. Henry. We think it is only reasonable that this construction should be placed upon the petition, because when the executrix, under the will of Mrs. Henry, qualified and undertook to discharge the duties of that office, it must be presumed that she took possession of all the personal property of Mrs. Henry, in whatever capacity the latter may have held the same, which included, under the petition, funds held as temporary administratrix. For these reasons we hold that the petition set out a cause of action.
Upon the death of the owner of any estate in realty, which survives, title to personalty vests in the...
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