Opinion
39234, 39235.
DECIDED MARCH 2, 1962.
Application for letters of administration, etc. Forsyth Superior Court. Before Judge Burtz.
Stow Andrews, Robert E. Andrews, for plaintiff in error.
Everett C. Brannon, Sr., contra.
1. Where the statute of limitation has not run a judgment of nonsuit does not operate as res judicata six months after such judgment of nonsuit is rendered.
2. Where an administrator has been appointed to administer the estate of a deceased who supposedly died intestate the later production and probate of a will of such deceased serves as a revocation of such letters of administration except as to such part of the estate as has been fully administered, and the holder of such letters of administration, unless otherwise interested in the administration of such estate, is not a proper party to file a caveat to an application for letters of administration with the will annexed.
DECIDED MARCH 2, 1962.
On February 1, 1960, Mercer Crow, as administrator of the estate of Nancy M. Crow, filed an application with the Ordinary of Forsyth County seeking permission to sell certain land as a part of the estate for the purpose of making distribution to the heirs. On February 27, 1960, Mrs. Maxine Whitfield, Ray Crow and Rex Crow filed their objections to such application for leave to sell such land and alleged: "1. That Mercer Crow, alleged and purported administrator upon Nancy M. Crow Estate, the petitioner for leave to sell certain lands, is not legally entitled to administer any estate that the said Nancy M. Crow might have. 2. Said Mercer Crow and this court has actual knowledge that the said Nancy M. Crow died testate and said will is of file in this court, and was probated in common form at the May Term, 1951, of Forsyth Court of Ordinary, and any letters of administration issued to Mercer Crow are therefore null and void, and of no force and effect. 3. Said Maxine Whitfield, Ray Crow, and Rex Crow further show to the court that the lands set forth in said Mercer Crow's petition for leave to sell should be sold by an administrator with the will annexed, who can execute good title to any purchaser, and objectors and [sic] in possession, and Maxine Whitfield has applied for letters of administration with the will annexed, and can and will administer said estate according to the wishes of said testator, Nancy M. Crow. 4. Objectors show that the application for leave to sell is premature, and as a matter of law, any legal administrator with the will annexed must have possession of the decedents property before it can be offered for sale, and, therefore, no leave can be granted until a legally qualified and acting administrator with the will annexed is appointed, and qualifies. 5. The said Maxine Whitfield, Ray Crow, and Rex Crow file this their objection, caveat, and motion to dismiss and strike from the docket the application for leave to sell the lands of Nancy M. Crow, in said Mercer Crow's petition for leave to sell. 6. Objectors show that the last will and testament of Nancy M. Crow was proven before this court of ordinary in May, 1951, and a copy of the order of probate is hereto attached marked Exhibit A, and pursuant to the terms of Mercer Crow's Bond, he is required to render and deliver up any purported letters of administration issued to him as administrator upon Nancy M. Crow's estate as an intestate." A copy of the order of the Court of Ordinary of Forsyth County wherein the will of Nancy M. Crow was probated in common form was attached as an exhibit to such objections. Thereafter, Mercer Crow filed a plea denominated as a plea of res judicata in which it was contended that the issues raised by the objectors had been decided adversely to them in separate litigation in the Superior Court of Forsyth County.
On February 27, 1960, Mrs. Maxine Whitfield also filed an application for appointment as administrator with the will annexed of the estate of Mrs. Nancy M. Crow, the applicant's grandmother, and on May 2, 1960, Mercer Crow filed a caveat to such application in which he alleged: "1. The said Mrs. Maxine Crow Whitfield is not a creditor, or next of kin, or has not been chosen by a majority of the next of kin. 2. Caveator shows that he is the duly qualified administrator of the estate of Nancy M. Crow, having been appointed administrator by the Court of Ordinary of Forsyth County, Georgia. 3. Caveator shows that the allegations contained in application of Mrs. Maxine Crow Whitfield for letters of administration with will annexed are untrue and false. 4. Caveator shows that all of the allegations contained in the application of Maxine Crow Whitfield for administratrix of the estate of Nancy M. Crow with will annexed have been heretofore adjudicated both by the Court of Ordinary of Forsyth County, Georgia, and the Superior Court of Forsyth County, Georgia. 5. Caveator shows that he has been selected in writing by Mrs. Kate McKinley, sole surviving child of Nancy M. Crow, as administrator of the estate of Nancy M. Crow. A Copy of said selection in writing is hereto attached marked `Exhibit A' and is by reference made a part of this caveat."
The Ordinary of Forsyth County found for Mercer Crow on both applications, and on separate appeals to the Superior Court of Forsyth County such findings were reversed and judgments adverse to Mercer Crow rendered. Thereafter, the motions for new trial of Mercer Crow were overruled and in separate writs of error he excepts to such judgments adverse to him.
1. The cases were heard by the judge of the superior court without the intervention of a jury on stipulations that the pleadings were to be considered as evidence. In case number 39235, wherein the application to sell real estate for the purpose of distributing the estate was being resisted, Mercer Crow filed a plea of res judicata and attached as an exhibit the petitions and answers in two former cases as well as a judgment of nonsuit rendered against the mother of the objectors in one of such actions. In the brief of the plaintiff in error it is stated: "There is only one issue to be determined in this cause: Did the trial and judgment in the former cause in Forsyth Superior Court, amount to res judicata of the issues raised by the objections filed by defendants in error to the application for leave to sell lands."
The only judgment rendered in the prior litigation was one of nonsuit against the plaintiff therein, the mother of the objectors in the present case. Code § 110-310 provides: "A nonsuit shall not be granted merely because the court would not allow a verdict for plaintiff to stand; but if the plaintiff fails to make out a prima facie case, or if, admitting all the facts proved and all reasonable deductions from them, the plaintiff ought not to recover, a nonsuit shall be granted. A judgment of nonsuit shall not bar a subsequent action for the same cause brought in due time." And Code § 3-808 provides in part: "If a plaintiff shall be nonsuited, or shall discontinue or dismiss his case, and shall recommence within six months, such renewed case shall stand upon the same footing, as to limitation, with the original case." With reference to such latter provision it has been held: "This provision has application only where the bar of the statute of limitation would otherwise apply, and does not attempt to limit the time in which a plaintiff may rebring his case if the statute of limitation on the action has not run. Lewis v. Lewis, 132 Ga. 348 (3) ( 63 S.E. 1114)." Alewine v. State, 103 Ga. App. 120, 121 ( 118 S.E.2d 499). The action in which the nonsuit was granted was an equity case in which the plaintiff sought to have a prescriptive title to real estate established, and while equity follows the law as to limitations of actions ( Code §§ 3-712, 37-103), yet, "Neither laches nor the statute of limitations will run against one in peaceable possession of property under a claim of ownership for delay in resorting to a court of equity to establish his rights." Sutton v. McMillan, 213 Ga. 90, 96 (7) ( 97 S.E.2d 139). A finding for the plea of res judicata was not demanded and the trial court did not err, under the pleadings used as evidence, in finding for the objectors and thereafter in overruling the motion for new trial in case number 39235.
2. In case number 39234, wherein Maxine (Crow) Whitfield sought to be appointed administratrix with the will annexed of the estate of Nancy M. Crow, the judge of the Superior Court of Forsyth County heard the case without the intervention of a jury with the pleadings being considered evidence by agreement of the parties.
In support of the caveator's motion for new trial, based on the usual general grounds only, it is insisted that under Code § 113-1202, and Dawson v. Shave, 162 Ga. 126 ( 132 S.E. 912); and Langford v. Spain, 89 Ga. App. 416 ( 79 S.E.2d 582), and similar cases the trial court erred in reversing the judgment of the court of ordinary for it was undisputed that Mrs. Kate McKinley was the sole surviving next of kin and she selected the caveator as her choice as the administrator of the estate.
The caveat to the application for letters of administration was not filed by Mrs. Kate McKinley but by Mercer Crow who, according to the record, was the administrator of the estate of Nancy M. Crow. There is no suggestion that Mercer Crow held an appointment as administrator with the will annexed, nor does the record disclose that such appointment was made after the probate of the will of Nancy M. Crow.
In Martin v. Dix, 134 Ga. 481 (1) ( 68 S.E. 80), an ejectment case brought by the legatees under a will to recover properties sold by an administrator of the estate before the will was probated, it was held that such sale was not ipso facto void.
In Walden v. Mahnks, 178 Ga. 825 (1) ( 174 S.E. 538, 95 ALR 1101), it was said: "Although letters of administration have been granted upon a supposed intestacy and the administrator has obtained a final discharge, a will thereafter presented to the court of ordinary may nevertheless be admitted to probate, and this without previous annulment of the former judgments. The statute of limitations does not apply in favor of such judgments as against a subsequent application to probate a will." In this same opinion the following language was quoted from the case of Thomas v. Morrisett, 76 Ga. 384: "No general administration upon an estate should have been granted in this State, where there was a will in existence which was afterwards proved and admitted to record, and if such administration has been granted in this State, and afterwards a will has been established, this would work a revocation, except as to such portions of the estate as had been fully administered prior to the production and probate of the will."
Once the will of Nancy M. Crow was probated any letters of administration previously issued on the assumption that the deceased died without a will were revoked except as to such part of the estate as had been fully administered prior to the production and probate of the will.
While the caveator alleged that he was the administrator of the estate, the allegations of the application for letters of administration of the estate with the will annexed, that there was no executor or administrator with the will annexed, was not in conflict with such allegations, for the caveator could have been the administrator of the estate prior to the probate of the will but not afterwards.
"An applicant for letters of administration must show that he has an interest in the estate, and likewise before one can object to the appointment of any applicant for letters of administration, it must be made to appear that the caveator has an interest in the subject matter which is to be administered. Generally, either an applicant or an objector must show that he is either an heir or creditor of the decedent; but this rule is not without exception. [ Bearden v. Baldwin, 174 Ga. 191, 198, 162 S.E. 802]." Sybilla v. Connally, 66 Ga. App. 678, 682 ( 18 S.E.2d 783).
The caveat showed that the caveator had been administrator of the estate but the probate of the will worked as a revocation of such letters and he was not, at the time the caveat was filed, the holder of such position, and the caveat nowhere else alleges that the caveator was a person otherwise interested in the administration of the estate. While Mrs. Kate McKinley may have been the person, under Code § 113-1202, to select the administrator the mere attaching such written selection as an exhibit to the caveat not properly in court did not demand a finding that such person be selected to the exclusion of the applicant for such letters whose petition showed her to be a grandchild of the deceased.
Judgment of the superior court sustaining the appeal by the applicant was authorized by the evidence and the judgment overruling the motion for new trial of the caveator was not error.
Judgments affirmed. Frankum and Jordan, JJ., concur.