Opinion
45155.
ARGUED MARCH 4, 1970.
DECIDED APRIL 7, 1970. REHEARING DENIED APRIL 16, 1970.
Discharge of administrator. Clayton Superior Court. Before Judge Banke.
Candler, Cox, McClain Andrews, E. Lewis Hansen, George M. Bobo, for appellants.
Hutcheson, Kilpatrick, Watson, Crumbley Brown, Lee Hutcheson, for appellee.
In the absence of a showing of injury or prejudice, one who has a personal injury claim against an insured decedent which is not barred by the statute of limitation, is entitled to have a judgment discharging the decedent's administrator set aside and an administrator de bonis non appointed for the undistributed asset (an automobile liability insurance policy) in order that he may assert his claim in a court of law.
ARGUED MARCH 4, 1970 — DECIDED APRIL 7, 1970 — REHEARING DENIED APRIL 16, 1970 — CERT. APPLIED FOR.
Petitioners appeal from an order of the Superior Court of Clayton County affirming an order of the court of ordinary denying a motion to vacate and set aside the judgment discharging the administrator of an estate against which petitioners have a claim.
On September 28, 1967, petitioners (who are nonresidents of Georgia) were involved in an automobile collision with E. C. Bishop in Clayton County. They immediately made claim upon Bishop and his insurer for their injuries, and negotiations ensued. Bishop died in Florida two months later. On February 6, 1968, the Clayton County Court of Ordinary appointed Norman H. Fudge as administrator of Bishop's estate. There is no reason to believe Fudge knew anything about the possible tort claim. He distributed the tangible assets and on April 7, 1969, after the proper advertisement, was discharged. Petitioners first learned of Bishop's death and the administration of his estate in August of 1969 after negotiations with the insurer had reached an impasse. They promptly made a motion in the court of ordinary to vacate and set aside the discharge of Fudge and to reinstate him as administrator in order that they might proceed against the estate with their claim for damages. The motion was denied on the grounds that as publication had been made, the petitioners had failed to pursue their rights in a timely manner and in the absence of fraud, the rights were lost. The superior court affirmed the denial of the motion.
Several different rules of law come into play here. First, one who has a tort claim for personal injuries is allowed two years from accrual in which to bring an action. Code Ann. § 3-1004. Second, a tort claimant cannot file a lawsuit against an administrator until 12 months from his qualification. Code § 113-1526; Jones v. Womack, 53 Ga. App. 741 ( 187 S.E. 285); Andrews v. Pollard, 121 Ga. App. 69 ( 172 S.E.2d 857). The petitioners here, even had they known of the administration, would have had a bare two months to file suit before the estate was closed. Third, a creditor of an estate is not required to give notice of his claim within the six months following publication; he merely loses his right to an equal participation with creditors of equal dignity. If assets remain when no claims of higher dignity are unpaid, the assets must be appropriated to pay the debt. Code Ann. § 113-1505. Here, all other creditors have been paid and there is an undistributed asset. An automobile liability insurance policy is considered an asset of an estate justifying the appointment of an administrator. If it were not, many claims would be precluded for lack of a defendant. Berry v. Smith, 85 Ga. App. 710 (4) ( 70 S.E.2d 62). Fourth, an administrator may, upon conclusion of his duties, be discharged by the court of ordinary and relieved from liability as such. Code §§ 113-2301, 113-2302.
The petitioners have followed the proper procedural steps to reopen the estate. Morris v. Johnstone, 172 Ga. 598 ( 158 S.E. 308); Phoenix Mut. Life Ins. Co. v. Daniel, 46 Ga. App. 129 ( 167 S.E. 117). The issue is whether the court of ordinary and superior court erred in denying their motion on the grounds of delay.
We have, therefore, a case in which two principles of law come into conflict: the need for finality in the administration of an estate and the right of an injured person to bring an action within two years of its accrual.
This appears to be a case of first impression in Georgia, and the lines of authority for each of the rules discussed above are of limited assistance. This type of case often presents "a choice between different rules which logically fit all past decisions but logically dictate conflicting results in the instant case. Logic provides the springboard, but it does not guarantee the success of any particular dive." Cohen, Ethical Systems and Legal Ideals, 34, 35 (1959).
We find persuasive the reasoning in a nearly identical case from North Carolina. "Petitioner had a right to present his claim for the alleged wrongful death of his intestate in a court of law against a representative of the Miles estate. . . In seeking to have the clerk set aside his order discharging the administratrix . . . it was not necessary for petitioner to surcharge the final account of the administratrix . . . or to show evidence of fraud, mismanagement or mistake . . . because petitioner's claim was not included or necessarily involved in her final accounting, and further, because until petitioner's unliquidated claim had been disposed of, it cannot be held that the Miles estate has been completely settled. . . We do not believe the right of petitioner can be defeated merely because the administratrix . . . has filed her so-called final account and been discharged, when . . . petitioner . . . commenced the action to recover damages for wrongful death within the statutory period. . . [M]ere delay of petitioner in commencing his action . . . which does not amount to a bar of the statute of limitations, does not of itself constitute laches, where the delay has not worked an injury or prejudice or disadvantage to the administratrix. . ." In re Miles' Estate, 262 N.C. 647, 652 ( 138 S.E.2d 487). Substantially similar conclusions were reached in Mississippi and Illinois. See Powell v. Buchanan, 245 Miss. 4 ( 147 So.2d 110); In re Palmer's Estate, 41 Ill. App.2d 234 ( 190 N.E.2d 500).
"Laches is not, like limitations, a mere matter of time, but principally a question of the inequity of permitting the claim to be enforced, an inequity founded on some intermediate change in conditions." Equitable Building c. Assn. v. Brady, 171 Ga. 576, 585 ( 156 S.E. 222); Hornsby v. Rodriguez, 116 Ga. App. 234 ( 156 S.E.2d 830). We have found no evidence here of some intermediate change which would result in injury or prejudice to the administrator if the discharge were set aside and the estate reopened for the sole purpose of administering the liability insurance policy by allowing the prosecution of this claim.
The court of ordinary and the superior court erred in denying petitioners' motion. If there is some valid reason why Fudge should not be reinstated, the court can appoint some other person as administrator de bonis non for the undistributed asset.
Judgment reversed. Deen and Evans, JJ., concur.