Davis v. Melton

• Decision Date: 04 March 1933
• Docket Number: 22446.
• Parties: DAVIS v. MELTON et al.
• Court: Georgia Court of Appeals

168 S.E. 320

46 Ga.App. 639

DAVIS v. MELTON et al.

No. 22446.

Court of Appeals of Georgia, Second Division

March 4, 1933

Syllabus by Editorial Staff.

That issuance of letters of administration was irregular fraudulently procured, or invalid generally does not affect liability of principal or surety on administration bond.

Where Georgia courts adjudged letters of administration issued by foreign probate court fraudulently procured, and pseudo-administrator and his surety were within jurisdiction of Georgia courts, they were subject to suit in Georgia, by administrator legally appointed in Georgia, for moneys which Georgia courts had adjudicated were illegally collected by pseudo-administrator.

This was true, notwithstanding petition did not show that administration in probate court of foreign jurisdiction had terminated, or that plaintiff had ever sought to establish a claim against pseudo-administrator in foreign probate court.

Where liability of pseudo-administrator for assets of estate has been adjudicated, adjudication is prima facie binding on surety in subsequent suit on pseudo-administrator's bond.

That pseudo-administrator's bond was made payable to probate judge of foreign jurisdiction held not to prevent Georgia administrator, to whom prior Georgia judgment and execution against pseudo-administrator was transferred by intestate's sole heir, from bringing suit on bond in his own name as administrator (Civ. Code 1910, §§ 4081, 4082).

Capacity to sue or be sued is determinable by law of forum.

Where it was adjudicated that pseudo-administrator was legally liable to pay moneys received over to sole heir, who transferred judgment to substituted administrator pseudo-administrator's failure to pay over money constituted breach of his bond.

In suit on pseudo-administrator's bond, plaintiff could not recover attorney's fees and expenses of suit against pseudo-administrator to which surety was not party (Civ. Code 1910, § 4392).

Error from Superior Court, Putnam County; James B. Park, Judge.

Suit by W. C. Davis, administrator, against W. E. Melton and another. Demurrer to the petition was sustained, petition was dismissed, and plaintiff brings error.

Reversed in part.

In suit on pseudo-administrator's bond, plaintiff could not recover attorney's fees and expenses of suit against pseudo-administrator to which surety was not party (Civ. Code 1910, § 4392).

Love Melton died intestate in Langley, Aiken county, S. C leaving an estate which consisted of a policy of life insurance for $1,000. His brother, W. E. Melton, applied to the probate court of Aiken county, S. C., for letters of administration, representing that he and another brother were the sole heirs. He was appointed, gave bond with the United States Fidelity & Guaranty Company as surety, and collected the proceeds of the insurance policy. Subsequently Mrs. Lydia Melton filed suit in the superior court of McDuffie county Ga., the residence of W. E. Melton, setting forth that she was the widow and sole heir at law of Love Melton, deceased, and alleging that W. E. Melton had obtained his appointment as administrator by fraud in misrepresenting the place of residence of the deceased, who was in fact a resident of Putnam county, Ga., and in falsely representing that he and his brother were the sole heirs. In this action it was adjudged by the decree of the court entered therein that the plaintiff in that case was the widow and sole heir at law of Love Melton; that at the time of his death Love Melton was a resident of Putnam county, Ga.; that the defendant W. E. Melton was not entitled to letters of administration upon his estate in Aiken County, S. C.; and that the plaintiff have and recover of the defendant W. E. Melton the sum of $1,000, which he was directed to pay over to her. Upon this judgment, execution was issued by the clerk of McDuffie superior court in favor of Mrs. Lydia Melton and against W. E. Melton. The ordinary of Putnam county appointed an administrator of the estate of Love Melton, and the execution issued upon the judgment obtained by Mrs. Lydia Melton against W. E. Melton was transferred by Mrs. Melton as an asset of the estate to the administrator of Love Melton appointed in Putnam county. Subsequently W. E. Melton became a resident of Putnam county, and the instant suit was brought in Putnam county by the Georgia administrator of Love Melton against W. E. Melton as principal, and the United States Fidelity & Guaranty Company as surety, such surety having an agent and place of business in that county, upon the bond executed in Aiken county, S. C., for the $1,000 proceeds of the insurance policy collected by W. E. Melton, interest thereon, and various items of expense set forth by the petition, including attorney's fees for bringing the instant suit. The bond sued on is in the following language: "Know all by these presents, that we, W. E. Melton and United States Fidelity and Guaranty Co., are holden and firmly bound unto George R. Webb, Judge of Probate for the County of Aiken in the full and just sum of Two Thousand ($2,000.00) dollars, to be paid to the said George R. Webb, or his successors, Judge of Probate of this county, or their certain attorneys or assigns. To which payment well and truly be made we bind ourselves and every one of us and every one of our heirs, executors, and administrators, for the whole, and in the whole jointly and severally, firmly by these presents. Sealed with our seals, and dated, the 24th day of April in the year of our Lord one thousand nine hundred and thirty, and in the 154th year of American Independence. The condition of the above obligation is such, that if the above bound W. E. Melton administrator of the goods, chattels, and credits of Love Melton, deceased, do make a true and perfect inventory of all and singular the goods, chattels and credits of the said deceased, which have or shall come to the hands, possession or knowledge of the said administrator, or into the hands or possession or knowledge of the said administrator, or into the hands or possession of any other person or persons, for him and the same so made, do exhibit unto the said Probate Court for Aiken County, when he shall be thereunto required, and such goods, chattels, and credits do well and truly administer, according to law, and make a just and true account of his actings and doings therein when required by the said court: and all the rest of the said goods, chattels, and credits which shall be found remaining upon the account of the said administration, the same being first allowed by the said court, shall deliver and pay unto such persons, respectively, as are entitled to the same by law; and if it shall hereafter appear that any last will and testament was made by the said deceased, and the same be proved in court and the executors obtain a certificate of the probate thereof, and the said W. E. Melton do in such case, if required, render and deliver up said letters of administration, then this obligation to be void, or else to remain in full force."

The defendants interposed a general and special demurrer to the petition. The special grounds of the demurrer were that the plaintiff failed to show any right to sue on the bond which was made payable to the judge of probate for Aiken county, S C.; that no breach of any condition of the bond was shown or alleged; that it did not appear that the administration in South Carolina had terminated, or that plaintiff had ever sought to establish his alleged claim in the probate court of Aiken county, S. C.; that no reason was set forth by the petition why the defendant should be liable for the expenses incurred in the previous litigation, and for attorney's fees in the instant action; and that the paragraph setting forth such expenses should be stricken. The court sustained the demurrer and dismissed the petition and to that...