Opinion
39678.
DECIDED NOVEMBER 29, 1962.
Action on note. Fulton Civil Court. Before Judge Parker.
Poole, Pearce Hall, Richard P. Perry, for plaintiff in error.
Robert Lee Avary, Jr., contra.
The note sued upon in this case being made payable to "A. G. Smith, Trustee," the legal title to said obligation was vested in Smith individually and not in his representative capacity; and upon his death the right to collect said note in an action at law accrued to his personal representative and not to his successor in trust.
DECIDED NOVEMBER 29, 1962.
R. L. Avary, Jr., as trustee for Mrs. Ruth Hardwick Tucker, brought suit in the Civil Court of Fulton County against John W. Hardwick, Jr., on a promissory note dated December 15, 1956, by which Hardwick had promised to pay to the order of "A. G. Smith, Trustee" a given sum of money. The note was attached to the petition as an exhibit. It was alleged in the petition that the promissory note was an asset of a trust estate created for Mrs. Tucker under the will of her mother; that it was due on demand and signed by the defendant Hardwick; that the plaintiff had been appointed successor trustee on November 27, 1961, in Fulton Superior Court in place of Smith who died on October 11, 1961; and that the plaintiff as trustee for Mrs. Tucker is the owner and holder of said note. The petition alleged that certain payments had been made on the note and that demand had been made for the balance which was past due and unpaid.
The defendant demurred generally to the petition on the ground that the plaintiff did not show legal title in himself to the note; that the note showed on its face that legal title to it had been in Smith individually and not in his representative capacity; and that consequently upon Smith's death the right of action had accrued to his personal representative and not to his successor in the trust. The defendant also filed an answer which was demurred to generally by the plaintiff.
The trial court overruled the defendant's demurrer to the petition and sustained the plaintiff's demurrer to the answer, and the exception is to these judgments.
1. The note sued upon in this case being made payable to "A. G. Smith, Trustee," the legal title to said obligation was vested in Smith individually ( Dozier v. McWhorter, 117 Ga. 786, 789, 45 S.E. 61); and upon his death the legal title descended to his personal representative and not to the successor in trust. Consequently, the right to collect said note in an action at law accrued to the personal representative and not to the successor in trust. Kennedy v. Gelders, 7 Ga. App. 241 (2) ( 66 S.E. 620); Zellner v. Cleveland, 69 Ga. 631; Saffold v. Banks, 69 Ga. 289. Accordingly, while the successor trustee could have brought this suit in the name of the personal representative of Smith for the use of the plaintiff as trustee, he could not sue in his representative capacity as successor trustee to Smith in an action at law.
This case is distinguishable from Bright v. Auto Finance c. Co., 52 Ga. App. 841 ( 184 S.E. 786), cited by the plaintiff, in that in this petition there is no allegation that a transfer was made to the plaintiff by written indorsement or for value without an indorsement.
The trial court erred therefore in overruling the defendant's general demurrer to the petition.
2. The erroneous overruling of the general demurrer to the petition rendered the subsequent proceedings in the case nugatory.
3. Counsel for defendant in error asks, in the event the judgment of the lower court is reversed, that we affirmatively specify that the defendant in error be allowed to amend by making the suit proceed in the name of the personal representative of A. G. Smith suing for the use of Avary as trustee for Mrs. Tucker. This request is granted. See Kennedy v. Gelders, 7 Ga. App. 241 (3), supra.
Judgment reversed with direction. Nichols, P. J., and Frankum, J., concur.