McCray v. First National Bank

Jordan Judge. Code Ann. §§ 113-1210.1,1210.'2,1210.3 (Ga. L. 1952, p. 87) provide as follows: “In all cases when the only qualified and acting executor of the estate of a decedent dies testate himself, any person or persons having an interest in the estate of [508] such first decedent shall have the right to apply to the court of ordinary having-jurisdiction of the administration of such first estate for the < appointment -of an administrator de bonis non with-the will annexed of such first testator.” (Code Ann. ■§- 113-1210.1). ■ '“■Upon the hearing of said application, after the issuance- and publication of citation as in other cases of applications for letters of administration, the ordinary- shall inquire into the circumstances of the -case and determine whether the -interest of such first estate and the persons interested therein will be best served-by the appointment of an administrator de bonis non with will annexéd or by-permitting the executor appointed under the will of- such deceased-executor-to be or become, as the case may be, -e executor- of such first estate by operation, of law.” (Code §113-1210.2). ' . • - - • - "bhould' the ordinary find that the interest of such .first estate and of. the persons- interested therein will be best served by the granting-of said application-the same-shall be granted, otherwise said application shall'be denied.” (Code Ann. § 113-1210.3). ■ Under the rulings of the Supreme Court and of th-is court in Myers v. Gann, 95 Ga. 383 (22 S. E. 611) and Roe v. Pitts, 82 Ga. App. 770 (2) (62 S. E. 2d 387), the-petitioner, as the sole- beneficiary under the will of-Harold Plennie -Miner who was a ■ beneficiary under the will of Mrs. J.- P. Miner, has an interest in.the estate of Mrs. J. P. Miner and is a competent party to be-named as administratrix of that estate.- Accordingly, she is a person “halving- an interest- in the estate of -such first decedent” within the purview of Code Ann. § 113-1210.1 as quoted -above and was entitled under that-Code section to apply to the Court' of Ordinary of Fulton County for letters of administration de bonis non-with the will-annexed on the estate of Mrs. J. P.. Miner; There is no merit- to the defendant’s contention that the above cited Code sections refer only to those persons who are beneficiaries under the will of the first decedent. Accordingly, .thé plaintiff’s petition stated a cause of action and the trial'court erred in dismissing-the appeal from the court of ordinary since under. Code § 6-501 the plaintiff was entitled to a de novo trial in the superior court on .the issues therein pre [509] sentedv See Roe v. Pitts, supra; (1); Goodman v. Little, 213 Ga. 178, 179 (97 S. E. 2d 567). Judgment reversed. Townsend, P. Carlisle, and ■Frankum, JJ., concur.