Ross v. Battle

• Citation: 39 S.E. 287,113 Ga. 742
• Parties: ROSS et al. v. BATTLE et al.
• Decision Date: 17 July 1901
• Court: Supreme Court of Georgia

39 S.E. 287

113 Ga. 742

ROSS et al. v. BATTLE et al.

Supreme Court of Georgia

July 17, 1901

Syllabus by the Court.

1. Overruling a motion to dismiss, as to minors, a petition wherein they appear as plaintiffs suing by a named next friend, the ground of the motion being that no guardian ad litem has been appointed, is not erroneous.

2. In an accounting between an administrator and the heirs of his intestate, he is not entitled to credit for sums expended by the sureties on his bond in settling debts of the estate when it appears that the latter have been fully reimbursed by a conveyance to them of property not belonging to the estate and under circumstances which will prevent them from asserting, either against the estate or the administrator any claim based upon the fact that they had settled such debts.

3. Nor, in such an accounting, can an administrator lawfully charge against the heirs the costs or expenses of litigation brought about by his own fault or misconduct.

4. Where one who is a surety upon a debt due by the estate of a decedent, and also surety upon the bond of the administrator of that estate, after paying off the debt waives all claim for reimbursement either from the estate or the administrator, the latter is not, in a settlement with the heirs, entitled to credit for the amount paid by such surety in satisfaction of that debt.

5. Exceptions to an auditor's report, which are so general in their terms that they fail to plainly and distinctly point out wherein the auditor erred in any ruling or finding of which it is intended to complain, are without legal merit.

6. It does not, in the present case, appear that the court erred in overruling the exceptions of the plaintiffs in error to the auditor's report, or in rendering the judgment excepted to in the bill of exceptions.

Error from superior court, Schley county; Z. A. Littlejohn, Judge.

Suit by E. L. Battle and others against W. J. Ross and others, administrators. Judgment for plaintiffs, and defendants bring error. Affirmed.

J. A. Hixon, W. A. Dodson, C. R. McCrory, and E. B. Hart, for plaintiffs in error.

J. H. Lumpkin, for defendants in error.

LEWIS J.

While the record in this case is voluminous, and the facts somewhat complicated, the bill of exceptions really presents for our decision only those points which are dealt with in the headnotes. It appears that J. R. Battle, Jr., died intestate in the year 1885, and that W. J. Ross and C. L. Ross were appointed administrators of his estate. His heirs were his widow, Edna L. Battle, and his children, R. E., Lottie, John A., and Randolph Battle. They brought in the superior court of Schley county an equitable petition against the administrators for an accounting and settlement. Three of the children, being minors, sued by their mother as next friend. The case was referred to W. M. Hawkes, Esq., as auditor, and in due time he filed his report. To this the plaintiffs filed certain exceptions, both of law and fact. The former were overruled, and of this they did not complain, and they also withdrew their exceptions of fact. The defendants likewise filed exceptions of law and fact, all of which were overruled, and a judgment was entered in accordance with the auditor's report. The defendants sued out a bill of exceptions complaining of the court's action in overruling their exceptions to the auditor's report and in entering judgment against them. We will now undertake to deal with the several questions thus presented for our consideration, and in connection with each set forth such facts as may be necessary to an understanding of our rulings in the case.

1.

The first question for determination is whether or not the minor children of the intestate were properly in court as plaintiffs. The point was made by the defendants below that the action could not, as to these children, proceed, for the reason that they appeared in the petition by their mother as next friend, and that no order had ever been passed appointing her their guardian ad litem. The auditor held (and his ruling on this point was confirmed by the superior court) that the action, so far as they were concerned, was properly proceeding. A formal order appointing a guardian ad litem was not requisite to give the minors a standing in court. The action, so far as related to the minors, was not void in the first instance; and, if defective at all, the defect was certainly cured by the action taken by the court in the premises. See, in this connection, Civ. Code, § 4947, and cases there cited.

2. From the evidence it appeared that there were several tracts of land belonging to the estate of the intestate, all of which were, at sales thereof by the administrators, bought by Mrs Battle, and duly conveyed to her. Subsequently she conveyed one of these tracts, known as the "Ross Place," to the wife of W. J. Ross, one of the administrators. Later several persons, who were...