Head v. Waldrup
| Decision Date | 10 February 1944 |
| Docket Number | 14734. |
| Citation | 29 S.E.2d 561,197 Ga. 500 |
| Parties | HEAD, Ordinary, v. WALDRUP. |
| Court | Georgia Supreme Court |
Rehearing Denied March 10, 1944.
Second Motion for Rehearing Denied March 20, 1944.
Syllabus by the Court.
1. In this suit, by an administrator residing in Spalding County for the writ of mandamus to compel the ordinary of Butts County to pass an order in accordance with the Code, § 113-1901, transferring the administration to the ordinary of the county in which the petitioner resided, the allegations were sufficient as against a general demurrer to show that the petitioner had previously 'filed' with the defendant ordinary a certificate under the seal of the ordinary of the other county, in conformity with subparagraph 3 of the above-stated section.
2. The fact that the ordinary of Spalding County had as a practicing attorney represented the present plaintiff in her application as an individual for appointment as administratrix in Butts County, did not disqualify him as ordinary to approve the new bond and to issue the certificate necessary in transferring the administration, since these acts were not in the same cause or matter in which he had been of counsel.
3. The fact that it appeared from an exhibit that the new bond as executed in Spalding County was not accompanied by a power of attorney showing authority of the person who signed it is 'attorney' in behalf of the surety company, did not make the petition subject to general demurrer, it being alleged that the bond had been approved by the ordinary of that county, and that the plaintiff had complied with all the requirements of the law in such case.
4. Nor are the provisions of the above-stated section limited to administrators who change residence after appointment. Even though an administrator may at the time of his appointment reside in a different county from that in which he is appointed, he may nevertheless have the trust removed to the county of his residence, on complying with such statute.
5. The mere pendency of a citation for settlement, against the administrator, in the court of ordinary of original jurisdiction did not prevent transfer of the administration under the Code, § 113-1901.
6. The petition was not defective as failing to show pecuniary loss for which the plaintiff could not be compensated in damages.
7. In view of recitals in the bill of exceptions and the judge's certificate, there is no merit in the contention that the judge erred in granting a mandamus absolute, after overruling the demurrer, without considering the answer and without further hearing.
On May 5, 1943, Quincey B. Waldrup, a resident of Spalding County as administratrix de bonis non of the estate of Mrs. Emma B. Maddox, deceased, presented to the judge of the superior court of Butts County, a petition against G. D. Head as ordinary and ex-officio clerk of the court of ordinary of Butts County, for a mandamus absolute to compel the defendant to enter an order transferring the proceedings in connection with the administration of the estate of said Mrs. Maddox from the court of ordinary of Butts County to the court of ordinary of Spalding County. The petition was sanctioned, and a mandamus nisi was issued. The respondent filed a general demurrer to the petition, and an answer denying the material allegations. On June 26, 1943, after argument on the demurrer by counsel for both sides, leave was granted the plaintiff to amend her petition. On August 16, 1943, an amendment to the petition was allowed, a copy thereof having been received by respondent's counsel on August 13. No objection was made to the allowance of this amendment. On September 4, 1943, the judge, on the pleadings and without further hearing, entered a judgment overruling the demurrer to the petition as amended, and granting a mandamus absolute as prayed. The respondent excepted.
The original petition contained among other averments the following:
On April 21, 1943, counsel for petitioner, by letter addressed to the ordinary of Butts County, requested certified copies of all the proceedings in the matter of the estate of said Mrs. Maddox, as provided by the Code, § 113-1901, and stated that on account of the inconvenience and shortage of gasoline, petitioner desired to remove the administration of said estate to Spalding County, the home of petitioner.
In response to this communication, the court of ordinary of Butts County furnished to petitioner certified copies of proceedings in said case as appeared in said court of ordinary; these certified copies were filed in the court of ordinary of Spalding County on April 16, 1943; and on that date they were recorded on the minutes of said court of ordinary.
On April 27, 1943, petitioner executed a new bond with good security for the discharge of her duties as said administratrix, payable to the ordinary of Spalding County, for the sum of $14,000, and the same was approved and filed on the same date in said court of ordinary. A copy of the petition to the court of ordinary of Spalding County, with certified copies of the copies filed in the court of ordinary of Spalding County from the records of the court of ordinary of Butts County, together with the administrator's bond filed with the court of ordinary of Spalding County, were attached as exhibits.
On April 27, 1943, the court of ordinary of Spalding County issued a certificate certifying that the provisions of the Code, § 113-1901, had been complied with, a copy of said certificate being attached.
'Petitioner further shows that she has complied with all the requirements necessary to transfer the proceedings in connection with the administration of the estate of Mrs. Emma B. Maddox from the court of ordinary of Butts County to the court of ordinary of Spalding County.'
'Petitioner has no specific legal remedy for her legal rights in the premises.'
In the copy of the certificate of the ordinary of Butts County, as attached to the petition, it was stated: 'This is to certify, that the said Quincey B. Waldrup as administratrix de bonis non of the estate of Mrs. Emma B. Maddox, deceased, has given a new bond payable to the ordinary of Spalding County, Georgia, with good security, for the discharge of her duties as administratrix aforesaid, in the sum of Fourteen Thousand Dollars as provided by Code Section 113-1901(2).' A copy of the bond as attached bore entry:
The bond was executed as a sealed instrument, and was signed by Quincey B. Waldrup as principal, and by 'Glens Falls Indemnity Co. by R. B. McDaniel, Attorney,' as surety. No power of attorney or other writing was attached showing the authority of McDaniel.
In paragraph 2 of the amendment, it was alleged that Exhibit D of the original petition was 'filed and so marked in the office of the court of ordinary of Butts County * * * on April 28, 1943'; this exhibit as shown in original petition being copy of letter of April 27, 1943, from plaintiff's attorney to respondent and containing certificate of the ordinary of Spalding County.
In paragraph 3 of the amendment, it was shown that after further proceedings in Spalding County, the ordinary of that county, on June 18, 1943, 'executed a certificate setting out that the terms of the statute providing for the transferring of the administration of an estate to the county of the residence of the administrator had been complied with,' and that this certificate, and other documents, 'were filed in the office of the court of ordinary of Butts County, Georgia, on the 18th day of June, 1943.' A copy of such second certificate contained substantially the same statement as to the new bond as appeared in the first certificate. In paragraph 4 of the amendment, it was alleged: 'Upon the filing of the instruments as set out in paragraph 3 above on June 18, 1943, the ordinary of Butts County then and there failed and refused to enter an order transferring the administration of said estate to Spalding County or to enter any order relieving the bondsmen of petitioner in the court of ordinary of Butts County.'
Joel B. Mallet, of Atlanta, for plaintiff in error.
Christopher & Futral, of Griffin, for defendant in error.
The Code, § 113-1901, declares:
'Whenever, from any change of residence, or other cause, an administrator or executor may desire to remove the jurisdiction of his trust from the court of ordinary of the county of the residence of testator or intestate to that of his own residence, the same may be done by complying with the following requisitions:
'1. By obtaining a copy of all the records of the ordinary relative to his trust, and causing the same to be recorded by the ordinary of the county of his residence.
'2. By giving to the ordinary of his county new bond, with good security, for the discharge of his duty as administrator, in the same manner as if the administration were originally granted there.
'3. By filing with the ordinary of the county having original jurisdiction a certificate, under the seal of the ordinary of the county to which the trust is to be...
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