McElhaney v. Crawford

• Decision Date: 29 April 1895
• Citation: McElhaney v. Crawford, 96 Ga. 174, 22 S.E. 895 (Ga. 1895)
• Parties: McELHANEY v. CRAWFORD.
• Court: Georgia Supreme Court

22 S.E. 895

96 Ga. 174

McELHANEY v. CRAWFORD.

Supreme Court of Georgia

April 29, 1895

Syllabus by the Court.

Where pending an action for libel, the defendant therein died intestate, the claim of the plaintiff, even if meritorious was not such a "debt" against the estate of the decedent as would prevent his widow, as sole heir at law from taking possession of his estate without administration.

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

Toombs Crawford filed a petition for the appointment of an administrator of the estate of George W. McElhaney. His widow filed a caveat, and from an order appointing the administrator brings error. Brought forward from the last term. Code, §§ 4271a- 4271c. Reversed.

Little & Little, for plaintiff in error.

Blandford & Grimes, McNeill & Levy, and Reese Crawford, for defendant in error.

LUMPKIN J.

George W. McElhaney died intestate, leaving his widow as his sole heir at law, and there were no debts due or to become due by his estate, unless the claim presently mentioned can be properly designated as a debt. At the time of his death, an action for libel, brought against himself and another by one Crawford, was pending and undisposed of in the superior court of Muscogee county. Crawford filed a petition with the ordinary of that county, alleging the existence and pendency of the above-mentioned action, that the estate of McElhaney was unrepresented, that no one had applied for letters of administration, and praying that the clerk of the superior court be appointed administrator. The widow filed a caveat, in which she set up that she was the only heir of the deceased; that there were no debts against his estate, and therefore no necessity for any administration; and that, if any such necessity did exist, she would be entitled to be appointed administratrix. The case went to the superior court by appeal, and was there submitted, to the presiding judge without a jury, there being no contest as to the facts above recited. The judge held that an administration should be granted; that the widow be appointed administratrix, if she so desired, and, if not, that the administration be vested in the clerk of the superior court. To so much of the order as adjudicated that there should be an administration upon the estate, Mrs. McElhaney excepted.

Under section 1762 of the Code, as amended by the act of December 12, 1882 (Acts 1882-83, p. 47), the wife, if the sole heir of her deceased husband, upon the payment of his debts, if any may take possession of his estate without administration. In view of this law, there can be no doubt that there was no legal necessity for an administration upon the estate of McElhaney, unless the claim of Crawford in his libel suit is to be regarded as a debt of the deceased. Even granting that the action was meritorious, still we do not think the claim therein set forth was, within the meaning of the statute, such a debt as would prevent the widow from taking possession of the estate without administration. It is true that in the case of Westmoreland v. Powell, 59 Ga. 256, this court held that where one committed an actionable tort upon the person of...