American Surety Company v. Jeffries

Gardner, J. The point is made that the suit is improperly brought in the name of the ordinary for the use of Mrs. Scarborough. Plaintiff in error takes the position that if any right of action exists, it is in the executors named in the will, or in an administrator cum testamento annexo. Webster v. Thompson, 55 Ga. 432, 435, is cited in support of this contention. That case, however, is readily distinguishable from the case at bar. The bond there sued on was that of a temporary administrator, and as pointed out in the- opinion, the office of a temporary administrator is to collect, preserve, and deliver to the permanent administrator. “His bond binds him to this, and perhaps his oath does too.” ' The bond sued on in the case at bar is that of a permanent administrator. Such administrator shall disburse the assets of the estate as the law requires. Code, § 113-1215. And “such bond [as is required] shall be payable to the ordinary for- the benefit of all concerned.” § 113-1217. Among other cases, Rudolph v. Underwood, 88 Ga. 664 (16 S. E. 55), is a precedent for the-bringing of the suit in the manner followed in the instant case. The Code, § 81-1307, [416] is authority for the procedure followed. The bond was given to the ordinary for the benefit of all concerned or “as are entitled to the same by law.” Certainly Mrs. Scarborough would fall within that class, under the allegations of the petition. It is well settled that the distributee may bring a suit on the bond of the administrator in the first instance without a suit against the administrator in his representative capacitjr. Mathis v. Fordham, 114 Ga. 364 (40 S. E. 324); Long v. Gordon, 61 Ga. App. 608 (7 S. E. 2d, 43), and cit. We accordingly hold that the suit, under the allegations of the petition, was properly brought by the ordinary for the use of the distributee. The plaintiff in error urges that the fraud charged in the petition constituted a personal tort by the administrator committed prior to appointment. This, however, is not the gist of the action. The petition alleges that the administrator, with knowledge of the plaintiff’s claim, negligently and wantonly, wilfully, recklessly, and in bad faith, distributed the greater part of the estate (including the plaintiff’s share therein) to himself and others in disregard of the plaintiff’s rights. We construe this to charge devastavit on the part of the administrator while acting- as such, and for which his bond would be liable. It is earnestly argued by able and diligent counsel for the plaintiff in error, and with much persuasiveness, that the conditions of the bond required the surety to stand sponsor only for the administration of the estate in accordance with the law of descent and distribution. This argument tends to by-pass the allegations of fraud. The petition alleged that the distributions were made to the administrator and others in bad faith, with knowledge that Mrs. Scarborough was named as a beneficiary under the will. Assuming this to be true, it would seem to be immaterial whether the administrator acquired the knowledge before or after his appointment. • The bond required the defendant to “well and truly administer, according to law, and . . deliver and pay to such persons respectively as are entitled to the same by law.” The conditions of the bond, as will be observed, are not restricted to an administration in accordance with the rules of inheritance, but according to law. ' It certainly would seem that for an administrator with full knowledge of a valid will to pay out the assets of an estate to those entitled to it under the rules of inheritance in disregard of the rights of a minor beneficiary under a will of the deceased [417] would not be “according to law,” but would be a breach of the administrator’s bond. We are not here dealing with the question of payments by an administrator according to the rules of inheritance before he has knowledge of the existence of a will. So far as we have been able to find, that is an open question in Georgia, there being no statute on the question as in many (if not most) other states. In Walden v. Mahnks, 178 Ga. 825 (174 S. E. 538, 95 A. L. R. 1101), the Supreme Court touched on the question, but did not decide it. As was said by that court in Awtrey v. Campbell, 118 Ga. 464, 467 (45 S. E. 301): “He [the administrator] obligates himself to administer the property of the estate according to law; and if he fails in this obligation, he is liable to the ordinary, for the benefit of those interested, for whatever damages they may have sustained by his failure to comply with this obligation. The allegations of the petition are certainly sufficient, as against a general demurrer, to show that the defendant has not administered the estate according to law* and that he is liable in some amount on account of his conduct which is set forth in the petition.” The petition was good as against the general demurrer. Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.