Opinion
30808.
SUBMITTED FEBRUARY 16, 1976.
DECIDED JULY 9, 1976.
Appointment of successor executrix. Fulton Superior Court. Before Judge Fryer.
John L. York, pro se. Smith, Cohen, Ringel, Kohler Lowe, Ronald W. Hartley, Fred W. Ajax, Jr., T. Michael Hurley, Jr., for appellee.
This appeal is from a judgment, rendered after a trial before the court without a jury, that appointed the appellee, Mrs. Davis, administratrix de bonis non with the will annexed of the estate of Jessee Hardman York, deceased. We have determined that the judgment was final and appealable, because the appointment of Mrs. Davis necessarily determined that there were assets in the estate of the deceased that had to be administered. We have also concluded that this court has appellate jurisdiction.
The testator died in 1965; Mrs. Mitchell, his aunt, was named executrix of his estate; the will gave Mrs. Mitchell a life estate in the testator's property; it gave Mrs. Mitchell the power to appoint by her will the remainder "among and between my said sisters and my said brother . . . in such manner and in such proportion (without requirement of equalization) as Mrs. Etta H. Mitchell shall see fit"; the appellant, the appellee, and Mrs. Brady are the two sisters and brother referred to in the will; Mrs. Mitchell died in 1972, but the power of appointment granted to her by the testator was not validly exercised by Mrs. Mitchell; Mrs. Davis applied for appointment as successor personal representative of the testator's estate pursuant to Code Ann. §§ 113-1210.1 and 113-1210.2; she was so appointed by the judge of the probate court over the opposition of appellant; the appellant appealed the decision of the probate judge to the superior court; and the superior court rendered the judgment referred to above that is for review here.
The trial judge concluded, and the evidence supports his determination, that two assets remained in the testator's estate, a tract of land and a bank account, still to be administered. Administration de bonis non is granted upon an estate already partially administered, and from any cause unrepresented. Code Ann. § 113-1209.
We find no error.
Judgment affirmed. All the Justices concur.