decided: May 13, 1889.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF GEORGIA.
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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
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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
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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. Martin, 37 Alabama, 219; Ex parte Maxwell, 37 Alabama, 362.
The Ordinary in accepting the resignation of Erwin treated the case as he would have done if Erwin's letters had been revoked by removal, and entered the orders in respect to Gray, as successor of Erwin and Gray, and so administrator de bonis non, and the new bond was accordingly conditioned to secure the administration of the property which remained to be administered. It is said by counsel that prior to 1854 there was no provision in the laws of Georgia for the resignation of an administrator, but it would seem that if an administrator had resigned, and his resignation had been accepted, such action
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on the part of the Ordinary would have been held equivalent to a revocation of his letters in the exercise of the power of removal. Marsh v. The People, 15 Illinois, 284.
As already stated, under the provisions of the Georgia code, where there are more than one administrator, and the letters of one are revoked, he must account to his co-administrator "as to an administrator de bonis non," and as, in the instance of the resignation of a sole administrator he must account to his successor, so where there are more than one, he who resigns must account to his co-administrator, as such successor, who would in effect in such case be an administrator de bonis non.
Irrespectively of statutory regulation, an administrator de bonis non could only administer upon the assets remaining unadministered, in specie; but under these provisions the retiring administrator must account to his successor, and such accounting is required before discharge.
It is urged that, as Erwin applied only for his own discharge as administrator and not as surety for Gray, and as the sureties made no application in their own behalf, the effect of Erwin's discharge was not to release the sureties. By § 2509 of the code, the provisions where a surety on a guardian's bonds desires to be relieved as surety are made applicable to sureties on administrators' bonds; and by § 1817 a mode is provided for obtaining such relief on complaint made by the surety to the Ordinary, citation to the guardian, hearing, and order of discharge. And in Dupont v. Mayo, 56 Georgia, 304, 306, it was held that where there was no petition, citation, or hearing, an order accepting a new bond already executed by the guardian and declaring a former surety discharged, could not be sustained. But those sections apply to a different state of case, namely, where the sureties are asking to be relieved from liability, and not where the administrator himself is requesting leave to retire.
Erwin proceeded in conformity with the statute in such case made and provided, and under the orders of May 1 and June 12, 1876, ceased to be administrator, and was discharged from further liability as such, as were the sureties who had signed the bond of Erwin and Gray.
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In Justices, etc. v. Selman, 6 Georgia, 432, the second section of an act of 1812 came under consideration, which read as follows: "Any executor, executrix, administrator, administratrix, or guardian, whose residence may be changed from one county to another, either by the creation of a new county, removal or otherwise, shall have the privilege of making the annual returns required of them by this act, to the Court of Ordinary of the county in which they reside, by having previously obtained a copy of all the records concerning the estates for which they are bound as executors, executrix, administrators, administratrix, or guardian, and having had the same recorded in the proper office in the county in which they then reside, and having given new bond and security, as the law directs, for the performance of their duty."
The court held, Lumpkin, J. delivering the opinion, "that the mere taking of a new bond does not, necessarily, release the old sureties, and especially when the new bond is taken by authority of law, for the purpose of strengthening the existing security," but that when the second or subsequent bond is given for a new and different undertaking, it operates, ipso facto, as a discharge of the prior parties and hence that when the provisions of the act are fully complied with the sureties on the first bond are discharged from all further liability on account of their principal.
We are of opinion that the court erred in rendering a decree against the sureties on the joint bond of Erwin and Gray for a devastavit committee after June 12, 1876.
Counsel for appellees contend that the sureties on this bond were not discharged because the service of the petition and citation on the three minor heirs, on Erwinis petition to resign, was insufficient, and guardians ad litem should have been appointed; that the resignation, was not effectual as to them, and therefore not as to any of the others. This point was not passed upon by the special master or the Circuit Court, nor was a cross-bill filed on behalf of either of these defendants. They asked no relief as against complainants but affirmative relief against their co-defendants, these sureties, and under such circumstances cross-bills are necessary.
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If, however, cross-bills were filed, as all the defendants are citizens of Georgia, and the complainants are citizens of Tennessee it is questionable whether the relief which the complainants could not obtain on their own case could be properly awarded by the Circuit Court, even though it could be successfully contended that these particular defendants were entitled to relief upon the ground suggested, and that their co-distributees could avail themselves of such conclusion, in respect to which we express no opinion, as these questions are not before us for decision in the present condition of the record.
It is assigned as error that the court decreed in accordance with the special master's report that the discharge of J. G. B. Erwin, H. C. Erwin and L. R. Ramsauer, because their names had been improperly signed to the joint bond of Erwin and Gray, did not discharge their co-sureties; but this was not urged on the argument. The master proceeded upon the ground that it was appellants' duty to see for themselves that the signatures of their co-sureties were binding upon them, if they intended to rely upon their being bound; and that it was the Ordinary's duty to see that valid signatures were made to the bond, but not to protect any one as surety, and that no fraud, concealment, or want of good faith could be charged on the Ordinary.
We do not regard the overruling of the exception, based as it is on the assumption of knowledge on the part of the Ordinary, and concealment misleading the other sureties, as erroneous. Dair v. United States, 16 Wall. 1; Lewis v. Board of Commissioners, 70 Georgia, 486; Matthis v. Morgan, 72 Georgia, 517; Trustees v. Sheik, 119 Illinois, 579.
It is further objected by appellants that the court erred in disallowing any commissions to Erwin and Gray, and particularly, the commissions of $3433.68 for distribution in kind. Upon a careful consideration of the proofs in the printed record and the various reports of the special master bearing upon this subject, we do not find such evidence of mismanagement on the part of Erwin and Gray as requires the forfeiture of all commissions, and, without entering upon any discussion of the details, we approve of the conclusions reached by the
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master in his first report, and direct a modification of the decree accordingly, if, upon the return of the case to the Circuit Court, it is found, in view of our decision in respect to the discharge of Erwin and the sureties on the bond of Erwin and Gray, that Mrs. Rice is not concluded by the accounting at the time of such discharge.
Decree reversed, and cause remanded with directions to proceed in conformity with this opinion.
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