Wheeler v. Horne

• Decision Date: 22 June 1911
• Citation: 71 S.E. 901,136 Ga. 486
• Parties: WHEELER et al. v. HORNE.
• Court: Georgia Supreme Court

71 S.E. 901

136 Ga. 486

WHEELER et al. v. HORNE.

Supreme Court of Georgia

June 22, 1911

Syllabus by the Court.

Florence Horne filed a petition against the administrators of Charles Wheeler, deceased, making, among others, substantially the following allegations: Wheeler died intestate, owning an estate of a named value, an inventory and appraisement of which was attached and made a part of the petition. The defendants became administrators of the estate more than a year ago, and took possession of the estate and converted it into cash, but have never made any returns, and the plaintiff is unable to state the exact amount of cash of the estate which the defendants have or should have. Plaintiff is the sole heir of the deceased and entitled to his entire estate. Plaintiff was the only issue of the marriage of her father and mother. Her father and mother were married in 1851. Her mother died in 1882. Her father obtained in 1860 a decree of divorce from her mother, but the same was void (for specified reasons). After this decree was granted, there were born to her father, as a result of two later marriages contracted while the mother of plaintiff was in life, certain children who are not his lawful heirs, because the decree for divorce was void. If the plaintiff is not the sole heir of her father, she is one of his heirs, and entitled to a share of his estate. Defendants deny that the plaintiff is entitled to a share in the estate. The plaintiff prayed that she "be declared by the decree of this court to be the child and heir at law of said Charles Wheeler, deceased," and for an accounting. The defendants filed an answer, wherein, among other things, it was alleged that the plaintiff was not the legitimate child of Charles Wheeler, and not entitled to any interest in his estate; that the estate had been partially converted into cash and distributed but that the timber on about 200 acres of land and all the notes and accounts due the estate had not been converted into cash. Upon the trial the following verdict was rendered: "We, the jury, find that plaintiff, Mrs. Florence Horne, is a child of Charles Wheeler, and entitled to an equal share of the Charles Wheeler estate." Held, that an heir at law may bring an action in the superior court for her distributive share of an estate against the administrator thereof, and pray for an accounting and settlement, at any time after the expiration of one year from the time of his qualification. If there are debts due by the estate, the administrator can plead and prove them, and thus protect himself and creditors of the estate. Williams v. Lancaster, 113 Ga. 1020 39 S.E. 471.

Plaintiff filed a written motion, stating that in the suit she was setting up an adverse claim against a named person (the reputed widow of Charles Wheeler) and other named persons (reputed children of Charles Wheeler), who claimed an interest and share in his estate, and prayed that they be made parties defendant to the case. On September 17, 1908 the court passed an order requiring that the persons referred to show cause on September 25, 1908, "why they should not be made parties defendant to the case stated at the head of the foregoing...