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Burk v. Hammond

Court of Appeals of Georgia
Sep 29, 1958
105 S.E.2d 807 (Ga. Ct. App. 1958)

Opinion

37264.

DECIDED SEPTEMBER 29, 1958. REHEARING DENIED OCTOBER 21, 1958.

Action on note. Floyd Superior Court. Before Judge Hicks. April 23, 1958.

Hugh J. Martin, for plaintiff in error.

Archibald A. Farrar, contra.


1. A note signed as follows: "As Administrator for C. W. Burk Family /s/ W. B. Burk (Seal)" is on the face of the note the individual undertaking of W. B. Burk.

2. An answer which alleged that the defendant signed the note as agent for an estate was properly stricken on demurrer for the reasons assigned in Division 2 of the opinion.

DECIDED SEPTEMBER 29, 1958 — REHEARING DENIED OCTOBER 21, 1958.


G. H. Hammond sued W. B. Burk on a promissory note. The note was signed as follows: "As Administrator for C. W. Burk Family /s/ W. B. Burk (Seal)". The defendant demurred to the petition on the ground that the action was brought against him as an individual whereas the note showed on its face that he executed the note in a representative capacity. The defendant also answered in part as follows: "5. For further answer, defendant shows that he executed the mortgage note attached to said petition as administrator for C. W. Burk Family and not in his individual capacity. 6. That at the time he executed said mortgage note defendant was acting as the agent for the C. W. Burk estate; that petitioner knew defendant was so acting; and that petitioner did not intend to hold defendant liable in his individual capacity. 7. That both petitioner and defendant intended that the estate of C. W. Burk be bound for payment of said note; and that accordingly the security for said note was the property of the C. W. Burk estate." The plaintiff filed general and special demurrers to the defendant's answer.

The court overruled the defendant's demurrer to the petition and sustained the plaintiff's demurrers to the answer, and the defendant excepts to these judgments.


1. The court did not err in overruling the general demurrer to the petition. The designation, "As Administrator for C. W. Burk Family", does not denote any legal capacity. Therefore, such designation is superfluous and has no legal bearing on the signature and the note stands on its face as being the individual undertaking of W. B. Burk.

2. For the reasons set out above the allegations contained in paragraph 5 of the defendant's answer are without merit.

The defendant further contends in his answer that at the time he executed the note he was acting as agent for the C. W. Burk estate and that it was the intention of the defendant and the plaintiff, the named payee, that the defendant would not be bound individually but that the obligation would be that of the C. W. Burk estate.

We know of no situation whereby a person can act as an agent of an estate. An estate is represented either by an administrator or an executor whose powers in dealing with the affairs of the estate are limited by law and by will if the administration is under a will. Even had the defendant been the administrator of the estate at the time he executed the note and even if he intended that the note not be his personal undertaking but that of the estate, he does not show authority to execute such a note. An executor or administrator cannot bind an estate he represents by note or by encumbrance without having been given such authority by the testator in a will. See McFarlin v. Stinson, 56 Ga. 396, 397; Gaudy v. Babbitt, 56 Ga. 640; Lynch v. Kirby, 65 Ga. 279; Howard v. Cassels, 105 Ga. 412 ( 31 S.E. 562, 70 Am. St. R. 44); Brannon v. Ober Sons Co., 106 Ga. 168, 170 ( 32 S.E. 16); Hughes v. Treadaway, 116 Ga. 663, 670 ( 42 S.E. 1035); Harris v. Woodard, 133 Ga. 104, 108 ( 65 S.E. 250). The defendant could not make a note as agent for the C. W. Burk estate because he was without authority to do so and being without such authority, the obligation was his individual undertaking. Code § 14-220. See, also, Harris v. Woodard, supra.

The defendant could not even seek a reformation of the note to show that he executed the note as agent of the C. W. Burk estate because he was not authorized to sign the note in such capacity. Vardeman v. Penn Mutual Life Ins. Co., 125 Ga. 117 (3) ( 54 S.E. 66, 5 Ann. Cas. 221).

The court did not err in overruling the general demurrer to the petition and in sustaining the demurrers to the answers.

Judgments affirmed. Quillian and Nichols, JJ., concur.


Summaries of

Burk v. Hammond

Court of Appeals of Georgia
Sep 29, 1958
105 S.E.2d 807 (Ga. Ct. App. 1958)
Case details for

Burk v. Hammond

Case Details

Full title:BURK v. HAMMOND

Court:Court of Appeals of Georgia

Date published: Sep 29, 1958

Citations

105 S.E.2d 807 (Ga. Ct. App. 1958)
105 S.E.2d 807