Crow v. Whitfield

• Decision Date: 02 March 1962
• Docket Number: 39235,Nos. 39234,No. 2,s. 39234,2
• Citation: 124 S.E.2d 648,105 Ga.App. 436
• Parties: Mercer CROW v. Maxine C. WHITFIELD. Mercer CROW v. Maxine C. WHITFIELD et al
• Court: Georgia Court of Appeals

Page 648

124 S.E.2d 648

105 Ga.App. 436

Mercer CROW v. Maxine C. WHITFIELD.

Mercer CROW v. Maxine C. WHITFIELD et al.

Nos. 39234, 39235.

Court of Appeals of Georgia, Division No. 2.

March 2, 1962.

Syllabus by the Court.

1. Where the statute of limitations has not run a judgment of nonsuit does not operate as res judicata six months after such judgment of nonsuit is rendered.

2. Where an Administrator has been appointed to administer the estate of a deceased who supposedly died intestate the later production and probate of a will of such deceased serves as a revocation of such letters of administration except as to such part of the estate as has been fully administered, and the holder of such letters of administration, unless otherwise interested in the administration of such estate, is not a proper party to file a caveat to an application for letters of administration with the will annexed.

On February 1, 1960, Mercer Crow, as Administrator of the estate of Nancy M. Crow, filed an application with the Ordinary of Forsyth County seeking permission to sell certain land as a part of the estate for the purpose of making distribution to the heirs. On February 27, 1960, Mrs. Maxine Whitfield, Ray Crow and Rex Crow filed their objections to such application for leave to sell such land and alleged: '1. That Mercer Crow, alleged and purported administrator upon Nancy M. Crow Estate, The petitioner for leave to sell certain lands, is not legally entitled to administer any estate that the said Nancy M. Crow might have. 2. Said Mercer Crow and this Court has actual knowledge that the said Nancy M. Crow died testate and said will is of file in this court, and was probated in common form at the May Term, 1951, of Forsyth Court of Ordinary, and any letters of administration issued to Mercer Crow are therefore null and void, and of no force and effect. 3. Said Maxine Whitfield, Ray Crow, and Rex Crow further show to the Court that the lands set forth in said Mercer Crow's petition for leave to sell should be sold by an administrator with the will annexed, who can execute good title to any purchaser, and objectors and [sic] in possession, and Maxine Whitfield has applied for letters of administration with the will annexed, and can and will administer said estate according to the wishes of said testator, Nancy M. Crow. 4. Objectors show that the application for leave to sell is premature, and as a matter of law, any legal administrator with the will annexed must have possession of the decedents property before it can be offered for sale, and, therefore, no leave can be granted until a legally qualified and acting administrator with the will annexed is appointed, and qualifies. 5. The said Maxine Whitfield, Ray Crow, and Rex Crow file this their objection, caveat, and motion to dismiss and strike from the docket the application for leave to sell the lands of Nancy M. Crow, in said Mercer Crow's petition for leave to sell. 6. Objectors show that the last will and testament of Nancy M. Crow was proven before this Court of Ordinary in May, 1951, and a copy of the order of probate is hereto attached marked Exhibit A, and pursuant to the terms of Mercer Crow's Bond, he is required to render and deliver up any purported letters of administration issued to him as administrator upon Nancy M. Crow's estate as an intestate.' A copy of the order of the Court of Ordinary of Forsyth County wherein the will of Nancy M. Crow was probated in common form was attached as an exhibit to such objections. Thereafter, Mercer Crow filed a plea denominated as a plea of res judicata in which it was contended that the issues raised by the objectors had been decided adversely to them in separate litigation in the Superior Court of Forsyth County.

On February 27, 1960, Mrs. Maxine Whitfield also filed an application for appointment as administrator with the will annexed of the estate of Mrs. Nancy M. Crow, the applicant's grandmother, and on May 2, 1960, Mercer Crow filed a caveat to such application in which he alleged: '1. The said Mrs. Maxine Crow Whitfield is not a creditor, or next of kin, or has not been chosen by a majority of the next of kin. 2. Caveator shows that he is the duly qualified Administrator of the Estate of Nancy M. Crow, having been appointed Administrator by the Court of Ordinary of Forsyth County, Georgia. 3. Caveator shows that the allegations contained in application of Mrs. Maxine Crow Whitfield for letters of administration with will annexed are untrue and false. 4. Caveator shows that all of the allegations contained in the application of Maxine Crow Whitfield for Administratrix of the Estate of Nancy M. Crow with will annexed have been heretofore adjudicated both by the Court of Ordinary of Forsyth County, Georgia, and the Superior Court of Forsyth County, Georgia. 5. Caveator shows that he has been selected in writing by Mrs. Kate McKinley, sole surviving child of Nancy M. Crow, as Administrator of the Estate of Nancy M. Crow. A Copy of said selection in writing is hereto attached marked 'Exhibit A' and is by reference made a part of this caveat.'

The Ordinary of Forsyth County found for Mercer Crow on both applications and on separate appeals to the Superior Court of Forsyth County such findings were reversed and judgments adverse to Mercer Crow rendered. Thereafter, the motions for new trial of Mercer Crow were overruled and in separate writs of error he excepts to such judgments adverse to him.

Stow & Andrews, Robert E. Andrews, Gainesville, for plaintiff in error.

Everett C. Brannon, Sr., Gainesville, for defendants in error.

NICHOLS, Presiding Judge.

1. The cases were heard by the Judge of the Superior Court without the intervention of a jury and on stipulations that the pleadings were to be considered as evidence. In case number 39235, wherein the application to sell real estate for the purpose of distributing the estate was being resisted, Mercer Crow filed a plea of res judicata and attached as an exhibit the petitions and answers in two former cases as well as a judgment of nonsuit rendered against the mother of the objectors in one of such actions. In the brief of the plaintiff in error it is stated: 'There is only one issue to be determined in this cause: Did the trial and judgment in the former cause in Forsyth Superior Court, amount to res judicata of the issues raised by the objections filed by defendants in...