Opinion
31273.
DECIDED JUNE 13, 1946.
Complaint on bond; from Carroll Superior Court — Judge Townsend. March 27, 1946.
Willis Smith, J. L. Smith, for plaintiff.
B. J. Mayer, Boykin Boykin, for defendants.
Each of the three counts of the petition set forth a cause of action, practically identical, against the former administrator for a failure to account to the executor of the estate, and it was error to sustain the demurrers and dismiss the action.
DECIDED JUNE 13, 1946.
W. E. Hudmon, as executor of the will of Mrs. Safronia Trawick Thomasson, sued James T. Thomasson, a resident of Troup County, J. J. Thomasson, Frank T. Thomasson, and William E. Thomasson, residents of Carroll County. Count 1 of the petition as amended alleged substantially: that J. T. Thomasson wrongfully intermeddled with the property of Mrs. Safronia Trawick Thomasson without authority and converted to his own use and is now in possession of certain described personal property and refuses to deliver it to the plaintiff on demand; that J. T. Thomasson as principal and the other defendants as sureties entered into a bond, for the faithful performance of the principal as permanent administrator of the estate of Mrs. Thomasson, a copy of which bond was attached to the petition; that the defendants were liable to the plaintiff in double the amount of the value of the property; that J. T. Thomasson and J. J. Thomasson destroyed Mrs. Thomasson's will after her death for the purpose of obtaining the estate for J. J. Thomasson; that J. J. Thomasson was the husband of Mrs. Thomasson, and the other defendants her stepsons, and that J. J. Thomasson would have been her sole heir at law if she had died intestate; that J. T. and J. J. Thomasson entered into a conspiracy to defraud the legatees under the will of Mrs. Thomasson and to destroy the will, and that they did destroy it; that later, in pursuance of said conspiracy, J. T. Thomasson made application for temporary letters of administration on the estate, alleging that she had died intestate, knowing that she had died testate; and that he did obtain temporary letters of administration; that, in pursuance of the conspiracy, J. T. Thomasson made application for and fraudulently obtained permanent letters of administration, giving a bond for $5000, later increased to $20,000, which J. T. Thomasson signed as principal and W. E. Thomasson, J. J. Thomasson, and F. T. Thomasson signed as security, and that both bonds are void, fraudulently obtained, each of the defendants knowing that there was a valid and existing will; that the will of Mrs. Thomasson was later established and probated in solemn form, the plaintiff being named as one executor and the only one who qualified; that J. T. Thomasson took possession of the property and converted the same to his own use, and he was acting as administrator in his own wrong, which was known to each of the defendants, they being parties to the scheme and conspiracy, and each is liable to the plaintiff in double the value of the property; that J. T. Thomasson admitted in open court that he took possession of the property and claimed that it was stolen from his safe in LaGrange, Georgia; that J. T. Thomasson set up in his inventory that he had turned all the property over to J. J. Thomasson. Count 1 was amended by the addition of the following prayers: (a) that he recover the value of said property, (b) that he recover judgment against the defendants for double the value of said property.
Count 2 is identical with count 1 with the exception that in count 2 it is alleged that J. T. Thomasson did not use ordinary care in the protection of the property and that he was negligent in allowing it to be stolen from his office. A third count was added by amendment, which was about the same as the other two counts, the only difference being in the statement of the details of the conspiracy and an allegation that J. T. Thomasson took possession of all the property both real and personal and that he and J. J. Thomasson divided up the personal property or that he (J. T. Thomasson) turned over the same to J. J. Thomasson after petitioner had filed an application to establish and probate the last will and testament of Mrs. Thomasson. The prayer in this count was for the value of the property.
Demurrers to the first two counts, amendments to which were allowed subject to demurrer, on the grounds that they set forth no cause of action, were sustained. The demurrer to count 3, that it set out a new cause of action, was sustained and the action as a whole dismissed. The plaintiff excepts to this judgment.
All three of the counts allege substantially the same facts. Neither sets forth a cause of action on the theory that the former administrator, without authority, wrongfully meddled with or converted to his own use the personalty of the deceased, either against the former administrator or any one or more of the other defendants, especially since the original appointment of the administrator is unreversed and not set aside. It does not matter with what purpose or motive one comes into possession of such property, if and when he qualifies as administrator of the estate his possession becomes legal, and everything preceding the appointment merges in the status, condition, and obligations then obtaining. The law then takes charge, fixes the status and present and future obligations. The duty of the administrator is to properly administer the estate. Mathews v. DeFoor, 172 Ga. 318 ( 158 S.E. 7). Since, however, the allegations of the petition are not in the alternative, and the single value of the property is prayed for, each count sets forth a cause of action against the administrator as principal and his bondsmen as sureties, for failure to account to the executor for the property upon revocation of the letters of administration on the probate of the will. The Code, § 113-2204, provides: "Whenever any executor or administrator shall have been removed or shall have departed this life, being liable to the estate, it shall be the duty of such removed executor or administrator, or his representatives, to account fully with the administrator de bonis non who may be appointed to finish the administration of such estate." The probate of the will worked a revocation of the letters of administration as to assets unadministered. Walden v. Mahnks, 178 Ga. 825 ( 174 S.E. 538, 95 A.L.R. 1101). This is equivalent to a removal of the administrator. While the original two counts apparently were intended to proceed only for double damages, the amendments sought single as well as double damages, and there was no objection or demurrer to the amendments to the first two counts on the grounds that they added a new cause of action. All three counts set forth a cause of action for failure to account for the property described, and it was error to sustain the demurrers and dismiss the action.
Judgment reversed. Sutton, P. J., concurs.
I think that the demurrers to counts 1 and 2 as amended should have been overruled, and concur in the judgment of reversal for that reason, but that the demurrer to count 3 was properly sustained.
The writing offered as an amendment by the plaintiff and designated count 3 was not addressed to any court, and did not name any person as plaintiff or allege who was the plaintiff, and did not contain any prayer for process. The fact that the other counts were addressed to the superior court and named a plaintiff and prayed for process, would not aid or sustain a so-called count lacking in these essential allegations. Under the Code (Ann.), § 81-101, and the annotations thereunder, I think it clear that the amendment known as count 3 was wholly inadequate and insufficient to state a cause of action and that the general demurrer thereto was properly sustained.