APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF GEORGIA.
MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.
By the order of the Ordinary of May 1, 1876, the resignation of John A. Erwin as administrator of the estate of Lewis Tumlin, deceased, was allowed, and Frank P. Gray was appointed sole administrator and required to give a new bond and security, which being given, and Erwin having settled and accounted with Gray, his successor in administration, and filed his receipt as provided by law, it was ordered that John A. Erwin as administrator and his securities be discharged from "any and all liability for any mismanagement of said estate in the future, but not from any past liability;" and this settlement having been made and receipt filed and new bond given by Gray, and these successive acts approved, by order of June 12, 1876, the discharge of Erwin as administrator was made absolute.
From the judgment of the Ordinary an appeal was prosecuted to the Superior Court of Bartow County by three of the heirs, one of whom dismissed her appeal, and, upon trial had, the decision of the Court of Ordinary was affirmed by
the verdict of a jury, and time taken to perfect a bill of exceptions with the view of carrying the case to the Supreme Court, which was not done. Judgment appears not to have been entered upon the verdict until pending this cause, when it was so entered nunc pro tunc as of July term, 1876. The Superior Court thus determined the order of the Ordinary to have been a proper one, and passed upon the question of jurisdiction.
Mrs. Ada S. Rice was duly served with Erwin's petition to be discharged, and citation to appear, but acquiesced in said orders, and did not participate in the appeal therefrom, and paid no further attention thereto, as she says in her petition to amend of May 19, 1883. Something over five years afterwards she filed the bill in this case, and by amendment, some two years after that, sought to hold the sureties on the bond of Erwin and Gray for alleged mal-administration of the latter after the discharge of the former.
The Courts of Ordinary in Georgia are courts of original, exclusive and general jurisdiction over decedents' estates and the subject matter of these orders, and its judgments are no more open to collateral attack than the judgments, decrees or orders of any other court. Davie v. McDaniel, 47 Georgia, 195; Barnes v. Underwood, 54 Georgia, 87; Patterson v. Lemon, 50 Georgia, 231, 236; Caujolle v. Ferrie, 13 Wall. 465.
In Jacobs v. Pou, 18 Georgia, 346, it was held that "the judgment of dismissal, by the Court of Ordinary, in such cases, must operate as a discharge from all liability on the part of the administrator, unless the same be impeached in that court, for irregularity, or in the Superior Court, for fraud;" and in Bryan v. Walton, 14 Georgia, 185, that the order appointing an administrator, and in Davie v. McDaniel, 47 Grorgia, 195, and McDade v. Burch, 7 Georgia, 559, that an order for sale of lands, could not be collaterally attacked.
It is argued, however, that upon Erwin's resignation the whole trust remained in Gray as survivor, and that the Ordinary could not make a new appointment while the office was not vacant, and § 2514 of the code is referred to, providing that, upon the revocation of the letters of one administrator, the trust remains in the hands of the other. The well-known
case of Griffith v. Frazier, 8 Cranch, 9, is also cited as in point, where letters of administration were held invalid, there being a qualified executor capable of exercising the authority with which he had been invested by the testator. But we think the position taken is untenable. Under the code, upon the death of an administrator, where there are more than one, the right of administration survives, (§ 2499,) but the Ordinary may apparently grant letters to others, (§ 2500;) and upon the revocation of the letters of one administrator, where there are more than one, the trust remains in the hands of the other, "and with him, as to an administrator de bonis non, the removed administrator must account," (§ 2514,) and his sureties are "liable for his acts in connection with his trust up to the time of his settlement with an administrator de bonis non or the distributees of the estate" (§ 2512). When an administrator resigns, and the resignation is allowed, he "shall be discharged from his trust whenever he has fairly settled his accounts with his successor and filed with the Ordinary the receipt in full of such successor" (§ 2610). This section uses the singular number, but undoubtedly covers the case of more than one administrator. Paragraph 4 of § 4 of the code reads: "The singular or plural number shall each include the other, unless expressly excluded." Code, 1882, p. 3.
Every administrator after the first is an administrator de bonis non in fact, and it is not important it should so appear of record. Steen v. Bennett, 24 Vermont, 303; Grande v. Herrerra, 15 Texas, 533; Moseley's Administrators v. ...