Hoyt v. Ware

Beck, P. J. (After stating the foregoing facts.) The rulings made in headnotes 1 and 2 require no elaboration. The attacks upon the portions of the answer of the administrator were made in the form of motions to strike those portions of the answer upon the grounds stated. It will be observed in headnote 3 that we treat these motions to strike as demurrers [102] to those parts of the answer referred to, and'we are of the opinion that they should be so treated. The ruling made in headnote 4 needs no elaboration. The demurrer of the United States Fidelity & Guaranty Co., referred to in the statement of facts, was mainly upon the ground that, first, where real estate is sold by an administrator without legal order of sale, such act does not render the surety liable; and secondly, that where an administrator takes possession of the real estate of an intestate and collects the rents, issues, and profits, he does so as a trustee for the heirs at law, and not as administrator; and that this is especially true where no legal order has been granted authorizing the administrator to take possession of the property for the purpose of sale to pay debts or for distribution. This demurrer was sustained, and the assignment of error upon it by the plaintiffs in error requires this court to decide whether the points raised by the demurrer are well taken. The court did not err in sustaining the demurrer as to the Fidelity & Guaranty Co. In so far ás concerns the proceeds of the sale of the land which it is alleged in the petition was sold without a valid order authorizing the sale, the petition itself shows on its face that that realty was still a part of the estate of the administrator’s intestate. The fact that we have held in another part of the opinion that under the evidence which was introduced after the demurrers were disposed of the order was, as a matter of fact, valid, does not affect the question of the demurrer. The petition alleged that the order was invalid. The demurrer was passed on in the light of that allegation, and the Guaranty Company was not liable as surety for any loss because of that sale or any loss of the proceeds; for the title to the same, had the order been invalid, would have remained in the estate. And the petition, in so far as it sought to recover a judgment for the amount of rents collected by the administrator, stated no cause of action against the surety. 'When the administrator’s intestate died the title to the realty passed to the heirs, under the provisions of our Code. The right to collect rents was in the heirs; and if the administrator collected them he did not do so as administrator, but as an heir, or as cotenant. It may be that under the circumstances he sustained a fiduciary relation to the heirs similar to the relation of a trustee to the cestui que trust, but he was not liable [103] on his bond as administrator, and the surety can not be held liable for the amount of rents collected. See cases of Cross v. Johnson, 82 Ga. 67 (8 S. E. 56); and Collins v. Henry, 155 Ga. 886 (118 S. E. 729). It follows from what we have said above that the court erred in denying a new trial as to the defendant R. E. Ware, but upon other questions involved no error is shown. A new trial will be -granted in so far as the ruling of the court upon the motion for new trial refuses a new trial as against R. E. Ware, administrator, but in all other respects it will be affirmed. Judgment reversed in part and affirmed in part. All the Justices concur, except Bussell, C. J., dissenting.