Pollock v. Cox

• Decision Date: 25 July 1899
• Citation: 34 S.E. 213,108 Ga. 430
• Parties: POLLOCK et al. v. COX, Ordinary.
• Court: Georgia Supreme Court

34 S.E. 213

108 Ga. 430

POLLOCK et al. v. COX, Ordinary.

Supreme Court of Georgia

July 25, 1899

Syllabus by the Court.

1. A temporary administrator of one who had been an heir at law of another decedent is entitled to maintain an equitable petition to prevent insolvent persons who have in their possession the assets of such decedent's estate from wasting the same.

2. If an administrator obtain letters of dismission by practicing a fraud upon the ordinary, such a discharge is no bar to an action against him and the surety on his bond, at the instance of one entitled to receive from him a portion of the estate of his intestate.

3. Such an action is in no event too late, if brought within three years from the date of the fraudulent discharge.

4. It is not a good defense to such an action that the estate of the plaintiff's intestate, who was an heir at law of the defendant's intestate, was unrepresented at the time the fraudulent discharge was obtained.

5. An adjudication that a given applicant for letters of administration upon the estate of a deceased person (the application, of course, being made by him in his individual capacity) was not, for reasons alleged in a caveat to his application, entitled to such letters, constitutes no estoppel against this same person in his capacity as administrator of an heir at law of the decedent upon whose estate he sought to administer.

Error from superior court, Burke county; E. H. Callaway, Judge.

Action by J. F. Cox, ordinary, for the use of J. W. Bates, against J. M. C. Pollock and others. Judgment for plaintiff, and defendants bring error. Affirmed.

J. J Jones & Son and J. R. Lamar, for plaintiffs in error.

R. O Lovett, for defendant in error.

FISH J.

1. While the present action was brought in the name of Cox ordinary, the real party at interest therein is J. W. Bates, as temporary administrator of Alice V. Bates, who seeks to hold the defendants liable upon a bond given to the ordinary. The petition filed by the plaintiff specifically alleges that these defendants are practically insolvent, and that, in order to render productive any judgment which may be obtained against them, the necessity exists of enjoining them from fraudulently disposing of certain personalty in their hands derived from the estate of one Aurelia Pollock, from whom Alice V. Bates inherited one-third of the property in question. Clearly, under the facts alleged, the plaintiff was entitled to invoke the equitable remedy of injunction as an incident to the more substantial relief sought. As to the authority of a temporary administrator to take all necessary steps looking to the collection and preservation of all personal assets of his intestate, see Civ. Code, § 3361, and Mason v. Fire Co., 70 Ga. 604, and cases cited.

2,3. It appears that one of the defendants, Josiah M.C. Pollock, took out letters of administration on the estate of the said Aurelia Pollock, giving as security on his bond Georgia McGregor, the other party named as defendant in the plaintiff's petition. The charge is made therein that colluding together, these defendants entered into a scheme whereby the said Georgia should set up the claim that she received as a gift from Aurelia Pollock, prior to the latter's death,...