Opinion
35947.
DECIDED NOVEMBER 17, 1955.
Complaint. Before Judge Whitman. Fulton Superior Court. May 3, 1955.
Heyman Abram, for plaintiff in error.
Eugene L. Tiller, contra.
1. "The right to bring an action for the benefit of an estate vests exclusively in the legal representative of the estate if there be one, subject to the modification that in cases of fraud or collusion on the part of the representatives, the heirs, legatees or devisees may file a bill in equity for the protection of their rights." Coastal Public Service Co. v. Mordecai, 49 Ga. App. 60, 61 ( 174 S.E. 147). See also Harrison v. Holsenbeck, 208 Ga. 410, 412 ( 67 S.E.2d 311); Battey v. Meyerhardt, 157 Ga. 800 (1, 2) ( 122 S.E. 195); Anderson v. Goodwin, 125 Ga. 663 (5) ( 54 S.E. 679); Holt v. Industrial Life c. Ins. Co., 182 Ga. 563, 565 ( 186 S.E. 193); Benton v. Turk, 188 Ga. 710 (4), 728 ( 4 S.E.2d 580); Hausauer v. Order of Railway Conductors Home Assn., 176 Ga. 369 (1) ( 168 S.E. 24). Since it was held by the Supreme court in transferring this case to this court that "The petition in the present case does not seek the appointment of a receiver, or any other equitable relief . . . the allegations and the prayers demonstrate that this is an action at law, and is not an equity case" ( 211 Ga. 805, 89 S.E.2d 165), it follows that this petition falls within the general rule that a right of action for the recovery of personal property vests exclusively in the administrator, and does not fall within the equitable exception that an heir may sue in his own name where by reason of fraud, collusion or other special circumstances the administrator is unwilling to bring the suit. The petition showing on its face that there has been an administration of this estate and that the administrator has been discharged prior to the bringing of this action, it was proper for the trial court to dismiss the petition on general demurrer to the effect that "the petition shows on its face that the said Frank P. Rogers, Jr., is now deceased, and this defendant says that if any right of action exists, it can only be maintained by a personal representative of the deceased, and the plaintiff suing as an heir at law is not entitled to maintain said action."
2. The act of 1852 (Ga. L. 1851-52, p. 235; Code §§ 49-235-49-239. § 113-1219, and §§ 113-2101-§ 113-2103), was for the purpose of permitting persons otherwise entitled to sue guardians or administrators on their bonds to join the principal on such bonds with the surety in a single action and to do away with the necessity of first obtaining a judgment against the principal in his representative and individual capacities before instituting the action against the surety. It was not intended to create any new right of action by an heir or other person at interest where such right of action did not otherwise exist. Accordingly the provisions of Code § 49-235 to the effect that "suit may be instituted against the guardian and his sureties on his bond in the same action at the instance of his ward, or a new guardian, or any other person interested, without first suing the guardian" creates no right of action in the plaintiff, an heir at law of a deceased insane ward which would permit him to sue the former guardian of such deceased ward on his bond for alleged devastavit of the ward's estate, without showing special circumstances such as would allow equity to intervene and sanction the suit in the name of the heir rather than in that of the administrator of the estate.
DECIDED NOVEMBER 17, 1955.
Henry T. Rogers filed an action in the Superior Court of Fulton County against Charles E. Taintor, personally and as guardian of Frank P. Rogers, Jr., deceased, and against National Surety Corp., as surety on the guardian's bond, alleging that the defendant was appointed guardian of the plaintiff's brother, an incompetent, made bond with the Ordinary of Fulton County, and during his tenure of guardianship committed certain alleged acts of devastavit and mismanaged and misappropriated the property of his ward; that he was guardian of the person and property of said ward also in the State of California, where said ward was located in a mental institution, and during 1950 the assets were transferred to California. By amendment it was alleged that upon the ward's death in California the defendant was appointed administration of his estate and that such administration was terminated prior to the filing of this suit; that the ward died in 1952 and that the plaintiff was himself laboring under an adjudication of insanity until February 16, 1953, when this disability was removed. It was further alleged "that the defendant Taintor, as administrator, would not and could not sue himself as guardian for the breaches of his fiduciary duty, his breaches of his guardianship bonds and his oath of office, or for his misappropriation and waste of his ward's assets, and if said plaintiff were not to bring this suit all the aforesaid wrongs committed by defendant Taintor would not be remedied."
1. Headnote 1 needs no elaboration.
2. It is contended by the plaintiff in error that the provisions of Code § 49-235 give him, as an heir of the deceased ward and therefore a "person interested" a right to bring a direct action against the defendant guardian and his surety on the guardian's bond to recover the money alleged to have been misappropriated by such guardian without regard to the fact that the ward is dead and the plaintiff is not the administrator of the ward's estate. This contention is without merit, for the reason that the purpose of Code § 49-235 was not to create a right of action in any person or class of persons, but to obviate the necessity of a plaintiff who had a cause of action filing an action and obtaining a judgment against a guardian as a prerequisite to commencing a suit on a guardian's bond. The history of this legislation was exhaustively covered in Bailey v. McAlpin, 122 Ga. 616 ( 50 S.E. 388). It was there pointed out that prior to 1820 it was necessary to bring three actions in order to recover on the bond of an administrator or a guardian — first against the fiduciary in his representative capacity, secondly against him in his individual capacity, and thirdly against the sureties themselves. The act of 1820, while intended to obviate the necessity for more than one suit, was so construed by the courts that, while an action could thereafter be brought against the fiduciary in his representative and individual capacities simultaneously, it was still necessary to obtain judgment therein before suing the sureties. This deficiency was remedied, as pointed out in the Bailey case, by the Act of 1852 (Ga. L. 1851-52, p. 235) which was passed for that purpose. The Bailey case dealt with an administrator's bond, but what was therein held was adopted as being equally applicable in actions on guardians' bonds in American Surety Co. of New York v. Macon Savings Bank, 162 Ga. 143 ( 132 S.E. 636). Any person at interest who might otherwise have sued a guardian and his surety, or an administrator and his surety, and recovered against the surety in a separate action may by virtue of this statute now sue such parties jointly in the same action, but no new right of action is created against either a guardian or an administrator which did not formerly exist. Nothing in this Code section alters the rule that a person other than the personal representative of an estate cannot sue at law to collect personalty which is a part of the assets of such estate.
The trial court did not err in sustaining the general demurrer and dismissing the petition.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.