Opinion
40085.
GRANTED MARCH 8, 1963. MOTION TO VACATE DENIED MARCH 13, 1963.
Application for supersedeas.
John H. Hudson, Pauline E. Cousins, for plaintiff in error.
Charles H. Bruce, contra.
1. The right to obtain a supersedeas upon a writ of error to this court by the filing of an affidavit in forma pauperis extends to the executor of a will on behalf of an insolvent estate, as provided under Code § 6-1002.
2. The affidavit may be traversed in the manner provided by Code Ann. § 24-3413, but a countershowing that goes only to the lack of the executor's poverty is insufficient.
GRANTED MARCH 8, 1963 — MOTION TO VACATE DENIED MARCH 13, 1963.
Mrs. Frances A. Samples, as the widow of J. T. Samples, applied in the Court of Ordinary of Fulton County for a year's support. The assessors duly appointed and qualified set apart to her a house and lot, valued at $6,000, which was the only asset in the estate of the deceased. Wesley Hugh Samples, as the executor of the will of J. T. Samples, filed a caveat to and opposed the application, and entered an appeal from the award to Fulton Superior Court, where it was confirmed by the verdict of a jury. To the overruling of a motion for new trial the executor duly filed his bill of exceptions seeking a review and correction of errors alleged to have been made upon the trial, and in connection therewith sought a supersedeas by the filing of an affidavit, duly attested, as follows: "Personally appeared before me the undersigned Wesley Hugh Samples, executor of the will of J. T. Samples, plaintiff in error in the bill of exceptions filed in the above stated case, and on oath says that he, as such executor, is, because of the proverty of the estate of J. T. Samples, of which he is executor, unable to pay the costs in said case or give the security for the eventual condemnation money, and that his counsel has advised him that he has good cause for a writ of error."
To this affidavit counsel for Mrs. Frances A. Samples filed a counter-affidavit in which it was averred that Wesley Hugh Samples was employed, had a good credit rating, owned his home and other property, and that others who were interested as beneficiaries under the will of J. T. Samples in the outcome of this litigation also own property and are not paupers.
Upon a hearing of the issue thus made the judge of the superior court denied a supersedeas and application is made to this court therefor.
1. Since the president of a corporation whose affairs are under his management may, on behalf of the corporation, make an affidavit in forma pauperis for obtaining a supersedeas, as provided in Code § 6-1002, Collins Park c. R. Co. v. Short Electric R. Co., 98 Ga. 62 ( 25 S.E. 929); Glenn Street Baptist Church, Inc. v. Stalls, 41 Ga. App. 366 ( 153 S.E. 76); Brunswick Timber Co. v. Guy, 52 Ga. App. 617 ( 184 S.E. 426), we think that it must follow that the executor of a will may likewise do it on behalf of the estate which he administers. Just as it was not required that the corporate officer swear to his own poverty, but to that of the corporation, the executor need not do so. He litigates here not for himself, but for the estate. That he may, as a legatee or devisee under the will, have some ultimate interest in the outcome of the litigation no more affects the situation than does the ultimate interest of the corporate officer as a stockholder in the corporation.
2. Prior to the act of 1955 (Ga. L. 1955, p. 584), now Code Ann. § 24-3413, there was no provision of law for traversing the affidavit. Sigman v. Austin, 112 Ga. 570, 576 ( 37 S.E. 894); Brunswick Timber Co. v. Guy, 52 Ga. App. 617, supra. The executor's affidavit here was sufficient to comply with the requirements of Code § 6-1002 (2), but the traversing affidavit made no countershowing as to the condition of the estate of J. T. Samples. Supersedeas should not have been denied; the motion here is
Granted. Felton, C. J., and Russell, J., concur.
ON MOTION TO VACATE.
Defendant in error has filed a motion to vacate the supersedeas urging that since Wesley Hugh Samples filed the caveat to the application for a year's support by the widow both in his capacity as executor of the will of J. T. Samples and in his capacity as a legatee under the will, and appealed the award of the assessors to the superior court likewise in both capacities, the countershowing as to his lack of poverty on the question of supersedeas was sufficient and that a denial was proper, and upon the further ground that the issue is moot because, after the denial by the trial court on the countershowing but before the entering of our order on March 8, 1963, the defendant in error alienated her title to the property set apart to her.
1. Defendant in error cites Walker v. Equitable Mortgage Co., 114 Ga. 862 (2) ( 40 S.E. 1010) as authority for the first ground of her motion to vacate, but that case does not require a vacation of the supersedeas. It appears there that in the bill of exceptions all of the plaintiffs in the trial court were joined as plaintiffs in error in the bill of exceptions, and all save one made a pauper's affidavit to avoid payment of costs in the Supreme Court. The one plaintiff in error who did not join in the affidavit was stricken as a party because his name "had been inserted in the bill of exceptions by mistake." The Supreme Court simply held that this did not relieve him from the payment of costs, saying that he "was a party to the case in the court below and the writ of error was prosecuted in his name. He is therefore liable for costs. If his name was inserted in the bill of exceptions by mistake, he must look for reimbursement to the person by whom the mistake was committed."
While Wesley Hugh Samples, in his individual capacity, was a party to the caveat and to the appeal, it does not appear that he was a party to the motion for new trial and he is not named as a party in the bill of exceptions which was sued out only by him as executor of the will. Individually, he has never been a plaintiff in error. This ground of the motion is without merit.
2. Since it appears that the affidavit filed by the executor was sufficient to comply with the requirement of Code § 6-1002 our order granting the supersedeas was really unnecessary, for under the provision of the section "the bill of exceptions thus filed shall operate as a supersedeas upon the plaintiff in error complying." If, as we have held that it did, the affidavit complied, the supersedeas was provided from the time of the compliance, i.e., the filing of the affidavit. The attempt of the widow to alienate the property can not render the matter moot.
Motion denied. Felton, C. J., and Russell, J., concur.