Williamon v. Williamon
| Decision Date | 13 January 1953 |
| Docket Number | No. 18034,18034 |
| Citation | 74 S.E.2d 71,209 Ga. 494 |
| Parties | WILLIAMON v. WILLIAMON. |
| Court | Georgia Supreme Court |
Maddox & Maddox, Rome, for plaintiff in error.
Wright, Rogers, Magruder & Hoyt, Rome, for defendant in error.
Syllabus Opinion by the Court
Mrs. Sarah Williamon brought her petition against Arthur Williamon, alleging in substance: that she was the widow and sole heir at law of Horace Williamon, deceased; that, at the time Horace Williamon was killed, he owned and operated a store and beer stand in Floyd County, Georgia; that, at the time of his death, there was in the store a large stock of goods worth $500 or other large sum, and that there were several hundred dollars in cash in the said store and on the person of Horace Williamon; that Horace Williamon owned a described automobile; that, in addition to the above, the deceased owned certain described real estate. The petition further alleges that, after the death of Horace Williamon, Arthur Williamon 'wrongfully and fraudulently and without any right entered into possession of said real property and took possession of same as well as all personal property herein mentioned, and that the said Arthur Williamon has wrongfully and fraudulently sold and disposed of a large portion of said personal property and will, unless enjoined, sell and dispose of the balance of said property, and your petitioner further shows that as the widow and sole heir at law of the said deceased, she is entitled to maintain this action.' It is then alleged that 'Arthur Williamon is insolvent and unable to respond in damages to any judgment that might be rendered against him, and that he has handled and disposed of said property as an executor de son tort, and is therefore liable to your petitioner in double the value of said property.' The petition also alleges that, unless the court order the defendant to deliver the automobile to the sheriff, it will be disposed of by him and that the petitioner is entitled to a judgment for $1,000 because of the wrongful disposition of the property set out. The prayers of the petition are: that defendant be temporarily restrained from disposing of any property, real or personal, above set out; that the defendant be permanently enjoined from interfering with the petitioner's claim to said property and from selling or disposing of any of the said property; that he be required to account to the petitioner for all the property described herein; and that she have judgment against the defendant for $1,000. The defendant filed his general demurrers to the petition and a special demurrer to the petition as a whole on the ground that there was a misjoinder of causes of action. All the demurrers were overruled. The exception here is to that judgment. Held:
1. In so far as the petition seeks to recover personal property or damages for personal property already disposed of, the petition fails to set out a cause of action. 'As a general rule, where there is no legal representative of an estate, a suit cannot be maintained directly at the instance of the sole heir at law, to recover from a third person personal property left by the deceased.' Hausauer v. Order of Railway Conductors Home Association, 176 Ga. 369, 168 S.E. 24, 25. Nothing appears in the instant petition which would take this case out of the general rule.
(a) It is sought in the instant case to come within the provisions of Code, § 113-1102, which allows heirs at law to recover double the value of personal property converted by an executor de son tort. However, Code, § 113-1102 applies only in the event an estate has no legal representative. See Code, § 113-1102, Allen v. Hurst, 120 Ga. 763, 48 S.E. 341; Willingham v. Rushing, 105 Ga. 72, 31 S.E. 130; Jones v. Jones, 151 Ga. 240, 106 S.E. 265. Nowhere in the petition in the instant case is it alleged that there is no legal representative of the estate or any equivalent allegation. A mere...
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