Opinion
33599.
DECIDED JULY 16, 1951.
Appeal; from Richmond Superior Court — Judge G. C. Anderson. March 5, 1951.
George B. Rushing, for plaintiff in error.
Hammond, Kennedy Sanders, contra.
1. Appeals from the court of ordinary to the superior court are de novo investigations, and it is proper to allow therein any amendment, whether in the manner of form or substance, which would have been proper while the case was in the court of ordinary.
2. ( a) The caveators here were not next of kin interested as distributees at the time of the death of the intestate, and the trial court did not err in sustaining the demurrer to their caveat and dismissing it.
( b) The applicants, although not entitled as a matter of right to administer the estate in question, were entitled to petition for such administration, and the ordinary properly appointed the Clerk of the Superior Court of Richmond County as administrator in the absence of a county administrator.
DECIDED JULY 16, 1951.
Jerry Goodwin and Katie Garner, two of the defendants in error here, filed an application in the Court of Ordinary of Richmond County on October 9, 1950, for letters of administration on the estate of James Tutt, in which it is alleged in substance that James Tutt died intestate on July 28, 1950, leaving surviving him his wife, Mary Jane Tutt, as his sole heir at law, he leaving no children surviving him; that Mary Jane Tutt, his widow, died on September 15, 1950, having done nothing in the interim concerning her husband's estate; that the applicants, Jerry Goodwin and Katie Garner, are brother and sister of Mary Jane Tutt and her sole surviving heirs; that Mary Jane Tutt at the time of her death was the sole surviving heir of her husband, James Tutt; that by reason of these facts they are interested in the estate of James Tutt and that his estate is not represented and is not likely to be represented, and that there is no county administrator. The application prays, therefore, that the Clerk of the Superior Court of Richmond County be named administrator under the provisions of Code § 113-1307.
To this application a caveat was interposed by Winnie Smith, one of five brothers and sisters surviving James Tutt, in which she alleges that the remaining brothers and sisters of James Tutt selected her as their choice to administer the estate; that she and the remaining brothers and sisters of James Tutt are his next of kin and as such entitled to administer his estate under the provisions of Code § 113-1202 (3). The petitioners then interposed a demurrer to the caveat on the ground that it failed to set forth any allegations which would entitle Winnie T. Smith to administer upon the estate of James Tutt, which demurrer was sustained. Thereafter, the ordinary appointed the Clerk of the Superior Court of Richmond County in accordance with the prayers of the petition of the defendants in error, Jerry Goodwin and Katie Garner. The case was then appealed to the Superior Court of Richmond County. While it was pending there, the original applicants amended their application by alleging that on December 5, 1950, while this case was pending in the court of ordinary, Carl Sanders was duly appointed by the ordinary as administrator of the estate of Mary Jane Tutt, he having been selected by petitioners as her sole heirs at law, and that he as such administrator joins applicants in their nomination of the clerk of the superior court, and affirms and ratifies the appointment of the clerk as administrator of the estate of James Tutt by the Ordinary of Richmond County as made on December 5, 1950. Demurrers were interposed to this amendment by the caveator on the grounds that it sought to add a new party to the cause of action and to base petitioners' claim on a fact not in existence at the time of the filing of the petition.
The judge of the superior court overruled the caveator's demurrer to the amendment. He also sustained the demurrer of the applicants to the caveat and dismissed it. The exceptions are to these rulings.
1. It is contended by the caveator that the trial court erred in overruling her demurrer to the amendment filed by the applicants after the case reached the superior court on appeal from the court of ordinary on the grounds that the amendment sought to add a new party to the cause of action, and sought to base applicants' claim on a fact not in existence at the time of filing the petition. Code § 6-501 provides as follows: "An appeal to the superior court is a de novo investigation. It brings up the whole record from the court below and all competent evidence shall be admissible on the trial thereof, whether adduced on a former trial or not. Either party is entitled to be heard on the whole merits of the case." See also Moody v. Moody, 29 Ga. 519. When the case came up in the superior court it was a de novo investigation. The judge of the superior court was invested with jurisdiction to allow the appointment of the administrator as made by the ordinary to stand or to revoke that appointment and appoint another. See Roe v. Pitts, 82 Ga. App. 770 ( 62 S.E.2d 387). It being a de novo investigation, it was proper for the trial court to allow any amendment, whether in the manner of form or substance, which would have been proper while the case was in the court of ordinary. See Wofford v. Vandiver, 72 Ga. App. 623 (4) ( 34 S.E.2d 579). The amendment did not seek to make Carl Sanders a party. It only sought to set up facts which had occurred subsequent to the appeal. The judgment of the trial court overruling the demurrer to the amendment was not error for any reason assigned.
2. (a) The caveator contends that the trial court erred in sustaining the demurrer of the applicants to her caveat and dismissing it because she contends that, as a sister of the intestate, she is his next of kin; that she was selected by the remaining brothers and sisters of the intestate who constituted all of his next of kin, and that by reason of these facts she is entitled to be appointed administrator of his estate.
Code § 113-1202, which prescribes the rules for granting letters of administration, provides in part as follows: "In the granting of letters of administration of any kind, the following rules shall be observed, the applicant being required, in all cases, to be of sound mind, and to be laboring under no disability. 1. The husband or wife surviving, irrespective of age, shall be first entitled. 2. The next of kin, at the time of the death, according to the law declaring relationship and distribution, shall be next entitled; but if the party died testate, the person most beneficially interested under the will shall have the preference. Relations by consanguinity shall be preferred to those by affinity. 3. If there shall be several of the next of kin equally near in degree, the person selected in writing by a majority of those interested as distributees of the estate, and who are capable of expressing a choice shall be appointed." It is noted that division two of the foregoing Code section provides in part that the "next of kin at the time of the death, according to the law declaring relationship and distribution, shall be next entitled." The record here discloses that at the time of the death of James Tutt he left surviving him his wife who was entitled to administer his estate under the first provision of the foregoing Code section. At that time the caveator and the remaining brothers and sisters of the deceased were not entitled to administer the estate nor were they interested as distributees. The priorities provided for in Code § 113-1202 are as the facts show their existence to be at the time of the death of the intestate. Also, construing the second and third provisions of this Code section together, it is obvious that the next of kin referred to are "next of kin . . interested as distributees of the estate." Murdock v. Hunt, 68 Ga. 164. Here, the caveatrix and her brothers and sisters are not in any way interested as distributees of the estate of James Tutt, who died leaving his wife as sole heir. Code § 113-903, establishing the rules of inheritance, provides in part as follows: "1. Upon the death of the husband without lineal descendants the wife is his sole heir, and upon the payment of his debts, if any, may take possession of his estate without administration." It is clear that the caveator was not entitled to be appointed under any of the provisions of Code § 113-1202, because she and the remaining brothers and sisters of the intestate who nominated her were neither the next of kin at the time of the death of the intestate nor are they in any way entitled to share in his estate. They were therefore not entitled to nominate one of themselves as permanent administrator. Rainey v. Moon, 187 Ga. 712, 715 (3) ( 2 S.E.2d 405). The trial court therefore did not err in sustaining the demurrer of the applicants to the caveat and dismissing it.
(b) The brother and sister of Mary Jane Tutt, the applicants to have the clerk of the superior court appointed administrator of the estate of James Tutt, are interested in the property which was once the estate of James Tutt. They are the sole heirs of Mary Jane Tutt who inherited this property from her husband, and as such have inherited it from Mary Jane Tutt. However, as such brother and sister of Mary Jane Tutt, they are not entitled to be appointed as permanent administrators themselves or to nominate another. They are merely heirs of his wife and as such are not heirs of the estate under consideration. See Roe v. Pitts, supra; Tanner v. Huss, 80 Ga. 614 ( 6 S.E. 18); Cubine v. Cubine, 58 Ga. App. 779 (2) ( 199 S.E. 833); Megahee v. Megahee, 143 Ga. 738 (1) ( 85 S.E. 877). They are, however, entitled to have an administrator appointed. In the exercise of this right, their petition affirmatively shows that "his estate is not represented and is not likely to be represented, due to the fact that his sole heir at law, Mary Jane Tutt, has since passed away." Under these circumstances, the duty devolves upon the ordinary to appoint a county administrator whose duty it shall be to take charge of the estate, or, in the absence of a county administrator, it shall be the duty of the ordinary to vest the administration in the clerk of the superior court of such county. See Code §§ 113-1301, 113-1307.
While the applicants were not entitled to nominate the clerk of the superior court to act as administrator as a matter of right, nor were they entitled to do so in conjunction with Carl E. Sanders, the administrator of the estate of Mary Jane Tutt, yet the ordinary was fully empowered under the law to appoint the clerk of the superior court as such as administrator. The judgment of the superior court is without error for any reason assigned.
Judgment affirmed. MacIntyre, P.J., and Gardner, J., concur.