Whelchel v. Haynes

Atkinson, J. A married woman died intestate, leaving her husband as sole heir at law. In 1885 an administrator was appointed upon her estate, who gave bond with two sureties. In 1887 the administrator sold certain land, from which sale he derived a fund which was never [308] reported to the ordinary or paid over to the heir. Subsequently the administrator died, and there was no administration upon his estate. In 1917 the ordinary, for the use of the sole heir above mentioned, instituted an equitable action upon the administrator’s bond, against the sureties alone, alleging all that is stated above. The petition also alleged “that the said administrator came into possession of said sum . . and other large sums belonging to said estáte,” and prayed that the defendants be required to account to petitioner with respect to the affairs of the estate. A general demurrer, on the ground that the petition appeared upon its face to be barred by the statute of limitations, was sustained, and the action was dismissed; and the plaintiff excepted. Held, that the cause of action alleged in the petition was barred by the statute of limitations, and there was no error in sustaining the demurrer. Civil Code (1910), §§ 4366, 4359, 4073; Thornton v. Jackson, 129 Ga. 700 (59 S. E. 905). No. 982. August 14, 1918. Equitable petition. Before Judge Jones. Hall superior court. May 10, 1918. . O. J. Tolnas, for plaintiff. W. M. Johnson, for defendants. Judgment affirmed. All the Justices concur.