Jepson v. Martin

• Decision Date: 12 December 1902
• Citation: 43 S.E. 75,116 Ga. 772
• Parties: JEPSON. v. MARTIN.
• Court: Georgia Supreme Court

43 S.E. 75

116 Ga. 772

JEPSON.

v.MARTIN.

Supreme Court of Georgia.

Dec. 12, 1902.

ADMINISTRATOR DE BONIS NON—APPOINTMENT—PETITION—DEMURRER.

1. Where, after the death of an executor without having completed administration of the estate of his testator, the court of ordinary of the county of the residence of the testator appoints, upon application, an administratrix de bonis nou cum testamento annexo, it will be presumed, in the absence of any showing to the contrary, that the ordinary acted within his powers, and that the appointment of the administratrix was valid.

2. A petition by an administratrix de bonis non with the will annexed, to recover from the executor of the executor of her testator property in the hands of the executor of her testator unadministered at the time of the death of the first executor, which shows her appointment as administratrix by a court of ordinary having jurisdiction to make the appointment, and which alleges that at the time of the appointment there was no executor on the estate of her testator, is not subject to demurrer on the ground that, because of the rule of law that an executor of an executor is ipso facto executor of the estate of which his testator was executor, the appointment of the plaintiff as administratrix was invalid, and she had no cause of action as such administratrix.

(Syllabus by the Court.)

Error from superior court, Muscogee county; W. B. Butt, Judge.

Action by E. J. Jepson against J. H. Martin. Judgment for defendant, and plaintiff brings error. Reversed.

J. L. Willis, for plaintiff In error.

J. H. Martin, for defendant in error.

CANDLER, J. Mrs. Jepson brought her petition against Martin as executor of the estate of Brannon, making substantially the following allegations: F. A. Jepson died in 1891, leaving a will in which he named Brannon as executor of his estate. Brannon qualified during the same year, and took charge of the property of the estate, which at that time was worth $2,000, or other large sum, and was more than sufficient to pay all the debts of the estate, and leave a considerable sum to be divided among the legatees of the will. Brannon failed and refused to fully administer the estate, and while still executor he died, In May, 1900, having in his hands belonging to the estate of Jepson the sum of $592, with interest thereon from February 2, 1892. Brannon left a will in which he named Martin as his executor, and on June 4, 1900, Martin qualified as executor of Brannon, and took charge of the assets of his estate, and he is now the only executor on the estate of Brannon. After the death of Brannon, "there being no executor of the estate of the said F. A. Jepson, " the plaintiff applied for letters of administration on Jepson's estate, and on November 5, 1900, she was, by the ordinary of Muscogee county, duly appointed administratrix with the will annexed of that estate, "and is now, under and by virtue of said appointment by the ordinary of Muscogee county, the administratrix with the will annexed of the estate of the said F. A. Jepson, deceased." Brannon during his lifetime, and Martin since Brannon's death, have refused to pay to the plaintiff the balance of the property of Jepson unadministered, to her damage $1,000, and she sues as administratrix with the will annexed of Jepson to recover this balance from Martin. To this petition the defendant demurred generally and specially, and the plaintiff filed an amendment to meet the objections set up by special demurrer. The defendant then demurred to the petition as amended, the grounds of the demurrer relied upon in this court, and which are germane to this discussion, being (1) that it appearing from the petition that Martin was and is the sole executor of Brannon, and that Brannon was the sole executor of Jepson, and it not being alleged that Martin had been removed as executor of Jepson or of Brannon, the alleged appointment by the ordinary of Muscogee county of the plaintiff as administratrix with the will annexed of Jepson was and is void; (2) that, it appearing from the petition that Martin is the executor of Brannon, who was the executor of Jepson. Martin, by virtue of his appointment and qualification as executor of Brannon, became the executor of the will of Jepson, and is entitled to administer the same. After argument the court below sustained the demurrer and dismissed the petition, and the plaintiff excepted.

1. If it had affirmatively appeared from the petition that, at the time of the appointment of the plaintiff as administratrix of the estate of Jepson, Martin was, virtute...