Giles v. Brown

Jackson, Judge. This was a suit brought by the ordinary for the use of McCoy, administrator de bonis non of Daniel Jones, deceased, against EL T. Brown, administrator on the estate of Mrs. Martha A. Jones, and W. R. Brown and Samuel Brown, the securities on his bond as said administrator. The breach of the bond alleged is, that Mrs. Jones having been appointed administratrix of Daniel Jones’ estate, had converted to her own use and mal-administered some thirty-four hundred dollars of that estate, and had died without accounting for the same, and that her administrator, Brown, had also failed to account for the same to the creditors of Daniel Jones ; and that this breach gave a right of action to the administrator de bonis non on Daniel Jones’ estate, against the administrator and his sureties on the estate of Mrs. Martha A. Jones. The defendants filed a demurrer to this action, the court sustained it and dismissed the case; and the controlling question made here is, did the administrator de bonis non have the right to call to account the admistrator of Mrs. Jones, Mrs. Jones having been his predecessor in the administration on Daniel Jones’ estate? 1. At common law, the administrator de bonis non had no right to call Mrs. Jones to account for any part of the estate she had administered, but only for the assets in her hands remaining in kind so as to be identified as she received them when she took charge of the estate — Thomas vs. Hardwick, 1st Kelly, 78. [660] So that as he had no light to go upon her for the estate which she had converted by mal-administration before her death, of course he would have none to go upon her administrator and his sureties at common law. But the common law was altered by the act of 1845, Cobb’s Dig., p. 335, which makes it the duty of the former administrator, “or the representatives of such deceased executor or administrator, to account fully with the administrator de bonis non.” See also Code, §§2514, 2515. In the case in 1st Kelly the act of 1845 is alluded to, but was not applicable to that case. So in 3d Kelly, 256. But in 5 Ga., 56, it is distinctly ruled that “ under the act of 1845 an administrator de bonis non may call his removed predecessor, or his representatives if he be dead, to account touching the entire administration of the estate, and the removed administrator is liable to him, as at common law he was liable to creditors and distributees.” If this ruling be law, the court was wrong in sustaining the demurrer on this ground. It has not been reviewed and overruled so far as we know. On the contrary the principle is reasserted and reaffirmed in Hardwick vs. Thomas and others, 10 Ga., 266; and in 11 Ga., 599, it was so recognized again ; and. in Knight vs. Lasseter, 16 Ga., 151, it is again distinctly ruled that the act of 1845 gives such right to the administrator de bonis non as well as to heirs and creditors. "We are not aware that the act of 1845 has ever been repealed. On the contrary it is referred to in the margin in the Code, sections 2514, 2515; and it is the authority for certain principles codified or alluded to in those sections. Indeed §2515 of the Code restricts the heirs, distributees or legatees to the right to sue only when no administrator de bonis non has been appointed, or, if appointed, neglects to sue. 2. Another ground of demurrer by the surety is, that he cannot be sued in this action because no devastavit has bóen shown and judgment obtained against the principal. The reply is that the principal has removed from the state. It [661] is immaterial that be was caught passing through the county and served. The Code makes the surety suable without judgment of devastavit first against the administrator if the admintrator “ shall remove from the state.” The declaration alleges that he has done so. He may have removed all his property and probably did, and hence the verdict against him could not bear fruit. Certainly, under the Code, the surety on his bond may be sued upon the facts here alleged and admitted, with his principal in the first instance. Code, §§33S4, 3386, 2507 — Henderson vs. Levy, 52 Ga., 35 ; 43 Ib., 275. 3. We think the allegations touching the creditors and the devastavit sufficient. Judgment reversed.