Murphy v. Hunt
| Decision Date | 04 April 1946 |
| Docket Number | No. 31166.,31166. |
| Citation | 37 S.E.2d 823 |
| Parties | MURPHY. v. HUNT et al. |
| Court | Georgia Court of Appeals |
Rehearing Denied April 18, 1946.
[COPYRIGHT MATERIAL OMITTED]
Syllabus by the Court.
1. A Court of Ordinary has jurisdiction of a petition of former executors of an estate, which is being administered in that court, to cite the administrator de bonis non cum testamento annexo to show cause why certain disputed items, claimed by the former legal representatives to be proper items of interlocutory costs or expenses of administration incurred by them or owing to them in connection with their administration of the estate, should not be allowed and paid as items of costs and expenses of administration.
(a) It is not a valid ground of objection to a petition fded in the Court of Ordinary, that the petition is addressed to the Ordinary; for, in this State, "Ordinary" and "Court of Ordinary" are treated as interchangeable terms when used in pleadings before the Ordinary or in the Court of Ordinary.
2. A petition which has a single defendant or respondent and a single subject matter, and in which each of the petitioners has an interest in the relief sought, is not multifarious.
3. The allegations of the petition which sought to have the expense of an audit of the estate, which was made by a third party at the request of the administrator, declared to be a proper item of interlocutory costs and paid as such, were legally sufficient; and the court did not err in overruling the demurrer, that it did not appear that the petitioners had the right to maintain the action, or that the expense of the audit was necessary or had been found necessary by the Ordinary.
4. It is not error to overrule grounds of a demurrer which are merely restatements of grounds contained in a motion in the nature of a general demurrer, which has been overruled by the court.
5. The allegations of the petition, that a named individual died testate and in his will nominated the petitioners as executors of his estate and that they qualified as such on a certain date and have since acted as such executors, are sufficient to show the authority of the petitioners to maintain the action; and the trial judge did not err in overruling the demurrer attacking these allegations on the ground that it did not appear that the will was probated and that the petitioners were acting under the provisions of the will rather than under the provisions of an unsigned paper in the form of a will which the deceased had caused to be prepared prior to his death, but which he had never executed as his will.
Error from Superior Court, Chatham County; David S. Atkinson, Judge.
Action by George W. Hunt and another, as executors of the estate of George A. Mercer, Sr., and another against Walter B. Murphy, as administrator de bonis non cum testamento annexo of the estate of Mrs. Honora Purvis, deceased, for an order directing the administrator to pay out of the funds of the estate in his possession items which petitioners contended were items of expense and cost of administration incurred by them while they were the legal representatives of the estate of Mrs. Honora Purvis, deceased. Motion to dismiss the petition and grounds of demurrer thereto were overruled, and the administrator brings error.
Judgment affirmed.
George W. Hunt and George A. Mercer, Jr., as executors of the estate of George A. Mercer, Sr., and George W. Hunt, individually, filed a petition against Walter B. Murphy, as administrator de bonis non cum testamento annexo of the estate of Mrs. Honora Purvis, deceased, hereinafter called the administrator, which petition was addressed to the Ordinary of Chatham County, Georgia, and filed in the Court of Ordinary of Chatham County, Georgia, on June 21, 1945. The petition alleged, in substance, that Mrs. Honora Purvis died testate, a resident of Chatham County, Georgia, on August 25, 1925, and that her will nominated George A. Mercer, Sr., as executor and provided he was to receive the usual commissions for his services; that her will was duly probated in bothcommon and solemn form and George A. Mercer, Sr., duly qualified and acted as executor of her estate from August 31, 1925 until his death on November 14, 1940; that while acting as executor of her estate, George A. Mercer, Sr., became entitled to commissions for his services in the amount of $432.92, of which no part had been paid; that George A. Mercer, Sr., died leaving a will, dated June 18, 1940, wherein George W. Hunt and George A. Mercer, Jr., were nominated executors and leaving an unsigned paper in the form of a will, which had been prepared shortly before his death but never signed by him, in which they were nominated as executors; that after the death of George A. Mercer, Sr., the legatees under his will, dated June 18, 1940, entered into a written agreement on November 14, 1940, to carry out the provisions of the unsigned will as though it had been properly executed as the will of George A. Mercer, Sr., and presented to the Ordinary a petition setting out this fact, and on November 20, 1940, an order was signed by the Ordinary ratifying the agreement and asserting that no administration should be had on the estate of George A. Mercer, Sr.; that on February 7, 1941, the Ordinary amended his previous order, by striking the assertion that no administration on the estate of George A. Mercer, Sr., should be had, and ordered that George W. Hunt and George A. Mercer, Jr., be allowed to qualify as executors of said estate upon their taking the oath as such, which they did on February 10, 1941, and that they had since acted as such executors; that George W. Hunt filed a petition in the Court of Ordinary setting out that he and George A. Mercer, Jr., were the duly qualified executors of the estate of George A. Mercer, Sr., and that George A. Mercer, Jr., had declined to act in connection with the estate of Mrs. Honora Purvis and that George W. Hunt was entitled to act as executor of her estate; that on September 1, 1943, the Ordinary signed an order confirming him as executor of her estate and he took the usual oath of office; that on June 7, 1944, Walter B. Murphy, as county administrator, filed a petition with the Ordinary, which petition alleged that George W. Hunt was illegally appointed executor of the estate of Mrs. Honora Purvis because he was not the duly qualified executor of the estate of George A. Mercer, Sr.; that the estate of Mrs. Honora Purvis was unrepresented and George W. Hunt was willing to surrender his letters testamentary, and the petition asked that the letters testamentary issued to George W. Hunt be cancelled and that Walter B. Murphy be appointed administrator de bonis non cum testamento annexo of the estate of Mrs. Honora Purvis; that he was appointed as such administrator and qualified on June 7, 1944; that George W. Hunt actually acted as executor of the estate of Mrs. Honora Purvis from November 14, 1940 until June 13 1944, and during this period of time earned commissions of $75.53, of which no part had been paid although he had demanded payment; that at or about the time Murphy qualified as administrator de bonis non cum testamento annexo on the estate of Mrs. Honora Purvis, he requested George W. Hunt to have an audit made of the estate; that George W. Hunt employed Thomas J. O'Brien & Company to make an audit of the estate of Mrs. Honora Purvis, which it did and which audit George W. Hunt delivered to the administrator along with all the assets of the estate in his possession; that although O'Brien & Company had requested payment of the account, amounting to $155, the administrator had refused payment and denied that the estate of Mrs. Honora Purvis was responsible because he had not authorized the audit to be made; that the administrator had converted the estate into cash and was preparing to distribute the funds in accordance with the will of Mrs. Honora Purvis. The prayers of the petition were that a hearing be had on said petition; that the administrator be notified of the time and place of the hearing; and that the administrator be authorized and directed to pay out of funds in his hands as such administrator the sum of $432.92 to George W. Hunt and George A. Mercer, Jr., as executors of the estate of George A. Mercer, Sr., the sum of $75.53 to George W. Hunt, individually, and the sum of $155 to O'Brien & Company, and the costs of the proceedings.
The Ordinary ordered that a copy of the petition be served on the administrator and that he show cause on July 2, 1945 why the prayers of the petition should not be granted. A citation was issued by the Clerk of the Court of Ordinary, directing the administrator to show cause on July 2, 1945, why the prayers of the petition should not be granted, and copies of the petition and citation were served on the administrator by a deputy sheriff of said county.
On June 28, 1945, the administrator filed a written motion in the Court of Ordinary to dismiss the petition and citation on the grounds that it appeared from the petition that (1) the Ordinary of Chatham County did not have jurisdiction of any of the causes of action set out in the petition;
(2) that the Court of Ordinary of Chatham County did not have jurisdiction of any of the causes of action set out in the petition;
(3) that the Ordinary of Chatham County did not have jurisdiction to grant any of the prayers of the petition; and (4) that the Court of Ordinary of Chatham County did not have jurisdiction to grant any of the prayers of the petition. On July, 11, 1945, the administrator filed, subject to his motion to dismiss the petition for want of jurisdiction, 22 grounds of demurrer to the petition. On August 7, 1945, the Ordinary and judge of the Court of Ordinary of Chatham County overruled the motion tp dismiss and all grounds of demurrer.
The administrator filed an appeal to the Superior Court of Chatham County from the orders and judgments...
To continue reading
Request your trial