Waldrop v. Nolan

• Decision Date: 17 May 1941
• Docket Number: 13734.
• Citation: 15 S.E.2d 225,192 Ga. 234
• Parties: WALDROP et al. v. NOLAN et al.
• Court: Georgia Supreme Court

15 S.E.2d 225

192 Ga. 234

WALDROP et al. v. NOLAN et al.

No. 13734.

Supreme Court of Georgia

May 17, 1941

Syllabus by the Court.

1. Jurisdiction of an equity suit by creditors of an estate seeking to recover on claims due them by a deceased person is not lodged in the superior court of Spalding County merely because certain heirs at law of the deceased reside in that county, no affirmative relief being prayed against the heirs.

2. Nor is jurisdiction of such suit vested in the superior court of such county because of the residence therein of one who had been administrator, but who had been removed; the suit as to him being against him in his representative capacity, and no affirmative relief as to him as an individual being sought.

3. A verdict and judgment against an administrator in his representative capacity, based on a claim against the estate rendered after he had been removed from office, can not bind the estate.

4. It was erroneous to overrule the demurrers and to appoint a receiver.

Mrs Addie Nolan and Mrs. Wylene Barnes, on October 30, 1940, filed in Spalding superior court their suit in equity against W. E. Waldrop, administrator of the estate of Mrs. Emma B. Maddox, and an heir of said deceased, against Lutie Waldrop, Ruby Waldrop Stubbs, Woodie Waldrop, Emma Waldrop, Quincey Bell Waldrop, Wilson Waldrop, Harris Waldrop, and Robert Lewis Waldrop, residents of Spalding County, Harris Waldrop and Robert Lewis Waldrop, minors, Mary Waldrop, of Troup County, Henry Jackson of Fulton County, Jessie Jackson of the State of Florida, Kirby Cheek Maddox of the State of North Carolina, and against J. L. Bailey, administrator of the estate of Emma B. Maddox, resident of Butts County, Georgia. The prayer was for injunction, receiver, and other relief.

It was alleged that at the August term, 1937, of the court of ordinary of Butts County, W. E. Waldrop was duly appointed and qualified as administrator of the estate of Mrs. Maddox, who had died a resident of Butts County about May 8, 1937; that petitioners presented to said administrator a claim against said estate for nurse services and house work, and, nothing definite being done by the administrator toward the payment thereof, separate suits were filed by petitioners against him, and on October 2, 1939, at the October term of Spalding superior court said cases were tried, verdicts rendered, and judgments obtained in favor of the plaintiffs against W. E. Waldrop, administrator of Mrs. Emma B. Maddox's estate, in the sums of $3,000 for Mrs. Barnes and $1,440 for Mrs. Nolan; that motions for new trial were overruled on September 14, 1940, and no exception was taken, that in September, 1938, a petition was filed by Kirby Cheek Maddox, who claimed to be the adopted son of the deceased, in which he asked for removal of W. E. Waldrop as the administrator of the estate, on the grounds of waste and mismanagement; that a hearing was had on said matter on October 4, 1938, and by order of the court of ordinary of Butts County W. E. Waldrop was removed as administrator and J. L. Bailey was appointed administrator de bonis non in the place of Waldrop; that Waldrop filed an appeal, and the superior court of Butts County overruled a motion to dismiss his appeal, and then reversed the judgment of the court of ordinary and sustained the administrator's demurrer and plea to the jurisdiction of the court of ordinary; that the case was then carried to the Court of Appeals of Georgia, where, on September 29, 1939, the judgment of the superior court was reversed on the sole ground that no valid appeal bond had been filed; that on October 30, 1939, J. L. Bailey, who had been appointed administrator de bonis non, made the usual oath and gave the bond required of administrators.

It was further alleged that in October, 1939, a petition to the superior court of Butts County was filed by Quincey Bell Waldrop, an heir of Mrs. Emma B. Maddox, against G. D. Head, ordinary of said county, in which she made the following allegations: That since the discharge of Waldrop as administrator no citation had been published, giving notice of the appointment of an administrator de bonis non of the estate of Mrs. Maddox, and she so alleged in a petition filed by her in the court of ordinary; that the said petition showed that she had been selected in writing by a majority of the heirs of the late Mrs. Emma B. Maddox, and nominated to be appointed administratrix de bonis non of her estate, and she prayed the court of ordinary to issue and publish citation to inquiry why letters of administration de bonis non should not be granted to her; that the ordinary refused to issue a citation, and failed to have citation published or to permit petitioner to have it published; and she prayed for mandamus absolute against G. D. Head, ordinary, requiring him to issue and publish citation. It is alleged in the petition in the instant case that rule nisi was issued and served; that the proceeding is still pending in court; that the plaintiff in that suit, 'so these petitioners are informed and believe,' contend that the appointment of the administrator J. L. Bailey, of Butts County, was illegal and void by reason of the failure of the ordinary to require or have published the necessary citation for his appointment; and petitioners allege that the estate of Mrs. Maddox has sufficient assets with which to pay petitioners' judgments; that administrator W. E. Waldrop declines and refuses to pay, although he has in his hands, or should have, sufficient funds; that he gives no reason for his refusal to pay petitioners' judgments; that petitioners, 'upon information and belief,' charge that both the aforesaid administrators claim to be the lawful representative of said estate, and 'petitioners are informed and believe' that all of the funds, assets, and property of the estate still remain in the hands of administrator W. E. Waldrop; that the estate of Mrs. Maddox at the time of her death consisted of real estate, cash money, Government bonds, mortgages and personal property, as listed, of the aggregate value of $8,000; that in August, 1939, administrator Waldrop obtained an order to sell the home place of Mrs. Maddox, and at the sale on the first Tuesday in November, 1939, George Barnes was the highest bidder at the price of $600, and the other house and lot was bid in and sold to J. H. Jackson for $370; that although both of these properties were regularly sold to the parties named, the administrator has failed to collect the amounts bid, or any amount, and resell the property, and has allowed taxes to accumulate and remain unpaid; that the State Highway Department instituted proceedings to condemn the Maddox home place for highway purposes, but the administrator failed to take any action to protect the estate's interest; that he has failed and neglected to wind up the estate, but has carried along the same at unnecessary expense, to the injury of petitioners; that so far as petitioners know, J. L. Bailey has taken no part or action toward the estate, other than qualifying as administrator; and that 'upon information and belief' W. E. Waldrop, individually, is insolvent, and is neglecting the administration.

Petitioners prayed for process; that second originals be served upon the non-resident defendants; that a guardian ad litem be appointed for the minor defendants, Harris Waldrop and Robert Lewis Waldrop; that W. E. Waldrop and J. L. Bailey be restrained and enjoined from further acts of administration; that some proper and discreet person be appointed receiver to retain possession of all property of the estate; that administrator Waldrop be directed to deliver to such receiver all assets of the estate, and be required to make a report of all assets coming into his hands and the disbursements made by him; that the receiver pay to petitioners their judgments, and that the balance in his hands, after payment of the expenses of the administration, be disbursed to the heirs at law of Mrs. Maddox. The petitioners filed an amendment striking from the original petition such phrases as 'so these petitioners are informed and believe,' 'upon information and belief,' and 'petitioners are informed and believe;' and adding the allegation 'that said W. E. Waldrop has never accounted to an administrator de bonis non for the assets that came into his hands as administrator, or turned over said assets to an administrator de bonis non.'

Various defendants filed demurrers, general and special, which were overruled. All the defendants except Bailey filed answers. At interlocutory hearing the following documentary evidence was introduced on behalf of the plaintiffs:

The original petition of Mrs. Wylene Barnes v. W. E. Waldrop, administrator of the estate of Mrs. Emma B. Maddox, deceased, No. 4425, filed at the October term, 1938, of Spalding superior court, with all entries thereon, including the entry of service and the judgment of the court. The original motion for a new trial, filed by Waldrop as administrator, in the same case, with the order of the court overruling the same. The answer of Waldrop administrator. The original petition of Mrs. Addie Nolan in her suit against W. E. Waldrop, administrator, No. 4426 of Spalding superior court, together with all entries on it. The answer of W. E. Waldrop in said case, and the motion for new trial therein.

Certified copies of the following, under one certificate of the ordinary of Butts County: (a) Petition of W. E. Waldrop administrator, in reference to the accounts of Mrs. Wylene Barnes and G. C. Barnes in the amount of $3,000, for services rendered to the deceased, Mrs. Maddox, and petition of W. E. Waldrop as administrator, in reference to the account of Mrs. Addie Nolan for $1,440 for...