Thomas v. State

• Citation: 87 Ga.App. 765,75 S.E.2d 193
• Decision Date: 13 March 1953
• Docket Number: No. 34513,No. 2,34513,2
• Parties: THOMAS v. STATE
• Court: United States Court of Appeals (Georgia)

Page 193

75 S.E.2d 193

87 Ga.App. 765

THOMAS v. STATE.

No. 34513.

Court of Appeals of Georgia, Division No. 2.

March 13, 1953.

Syllabus by the Court

1. A petition for disbarment which alleges that a named attorney, as administrator of a named estate of a deceased person, fraudulently and wilfully converted to his own use a specified sum of money which had come into his hands as such administrator is sufficient, as against demurrer, to show a conversion of trust funds.

2. An attorney may be disbarred upon it being shown to the satisfaction of the court that he has been guilty of deceit or wilful misconduct in his profession. Courts have an inherent right to admit attorneys to practice before them, and to disbar them for cause, and it is not necessary that the conduct be criminal in order to subject the attorney to disbarment, or that, if criminal, he shall have first been convicted of such crime, nor is it necessary that the misconduct complained of be confined to the professional practice by the attorney of his profession, where the misconduct is indicative of moral unfitness for the practice of law.

A petition was filed in the Superior Court of Fulton County by the solicitor-general in his official capacity, seeking disbarment of the plaintiff in error from the practice of law, which petition alleged in substance that the defendant has committed acts of deceit and wilful misconduct which render him unfit to enjoy the privileges of attorney at law for that, as the petition avers, the defendant at divers times during 1950 and 1951, in said county, he being then and there the duly appointed qualified and acting administrator of the estate of Lewis Edgar Austin, deceased, did fraudulently and wilfully convert to his own use $18,000 in money, of the value of $18,000, which sum had come into his hands as such administrator; and that said acts of misconduct bring reproach upon the profession and render the defendant a nuisance to the courts, fellow members of the bar, and the public.

Objections to the sufficiency of the pleadings were filed by the defendant, on the grounds that the petition is insufficient in law to form the basis of disbarment proceedings; that the petitioner sets forth mere conclusions unsupported by any allegations of fact; and that the administrator is, as a matter of law, entitled to use funds of the estate coming into his hands by paying interest thereon.

The demurrers were overruled, and the exception is to this judgment.

William G. McRae, Atlanta, for plaintiff in error.

Paul Webb, Sol. Gen., and Charlie O. Murphy, Atlanta, for defendant in error.

TOWNSEND, Judge.

1. Under Code § 9-501, an attorney may be removed, among other reasons, upon it being shown to the satisfaction of the court that he has been guilty of any deceit or wilful misconduct in his profession, or for indecent behavior in or out of the courthouse whereby he becomes a nuisance to the court, his brother members of the bar, or the public. 'No formal pleading is necessary in a suit to disbar an attorney at law. If with reasonable certainty and particularity it sufficiently apprises the attorney of the nature of the charges, it is good.' Williford v. State, 56 Ga.App. 840, 194 S.E. 384. See also Brant v. State, 72 Ga.App. 704, 34 S.E.2d 735.

'An executor or administrator may be guilty of conversion where he uses the assets of the estate for his individual purposes or has them transferred to himself as individual owner'. 33 C.J.S., Executors and Administrators, § 244, page 1252. See also Bellah v. Cleghorn, 165 Ga. 494(1) 141 S.E. 311. An allegation in a petition for removal of an executor that he has collected and converted to his own use a specified amount of money of the estate is sufficient, as against demurrer, to set forth a state of facts which would authorize removal. Gibson v. Maxwell, 85 Ga. 235, 11 S.E. 615. And it was held in American Fire & Casualty Co. v. Barfield, 81 Ga.App. 887, 891, 60 S.E.2d 383, that one who, during the existence of a fiduciary relation, converts a chattel to his own use after being entrusted therewith, with intent to steal, is guilty of larceny after trust, although there was no fraud or pretense in his original acquisition of the property. See also Lanier v. State, 17 Ga.App. 261 (2a), 86 S.E. 417. It is contended by the defendant that, since under the provisions of Code, § 113-2207 an administrator is liable for payment of interest upon all balances left in his hands at the beginning of each year, over and above the payment of expenses for said year, as ascertained upon final settlement, he is entitled to the use of funds in his hands belonging to an estate which he represents upon payment of interest thereon and, in support of this contention, cites Bennett v. Bird, 139 Ga. 25, 28, 76 S.E. 568, and Paschal v. Melton, 174 Ga. 910, 912, 164 S.E. 757. The former case decided only that, where a guardian had so used the money of the estate and had paid interest thereon, with no attempt to conceal such fact, a ward who waited until many years after the final accounting, and after she had reached majority, to complain of the transaction, was guilty of laches, and it would be inequitable twenty years later to elect to take the land (which had received valuable improvements and greatly appreciated in value) rather than the fund with interest, which she had accepted in final settlement. The latter case held only that the court of ordinary had no jurisdiction to hold an administrator in contempt of court for failing to pay...