Opinion
31674.
DECIDED SEPTEMBER 10, 1947.
Complaint; from Tattnall Superior Court — Judge Price. April 15, 1947.
H. H. Elders, for plaintiffs in error.
M. W. Eason, W. Glenn Thomas, J. H. Highsmith, contra.
The evidence authorized the verdict.
DECIDED SEPTEMBER 10, 1947.
Mrs. J. W. Brannon died in the year 1925, leaving a will. She bequeathed to the defendants in error (the plaintiffs in the court below), whom we shall call the plaintiffs, the plaintiffs being eight in number, together with four others who are not parties to this suit, all of her property "share and share alike," with the exception of certain Liberty Bonds, which she specifically bequeathed to parties other than the twelve mentioned above. At the January term, 1926, one of the plaintiffs in error, H. H. Elders, qualified as administrator with the will annexed, and furnished a bond with himself as principal and W. H. Yeomans and W. V. Overstreet as sureties. The plaintiffs entered this suit against the administrator and the sureties on his bond. These three are the plaintiffs in error and defendants in the court below, and we shall herein refer to them as the administrator. The suit is brought for two-thirds of the interest of the estate. It is alleged that the administrator made no inventory, made no returns as required by law, and dissipated the estate by neglect and unlawful charges for expenses, etc. The petition did not ask for any specific amount, but did allege various items of property which came into the hands of the administrator and for which amount the administrator had not accounted. The prayer was for the bequest of the plaintiffs in the estate, plus interest at 7 percent. The suit was based on two counts — the second count, although not brought up, appears from the evidence to have been based on negligence in collecting a certain note owing the estate by one White. It developed during the evidence that the ordinary, having jurisdiction of the administration, authorized a compromise of this item for $500, and this $500 was charged to the administrator in the general accounting to the plaintiffs. The court directed a verdict in favor of the administrator as to count 2.
The administrator answered, admitting the will, the probate, his appointment as administrator, the giving of the bond, and the collections to the amount of $2470. In his answer he claimed that all of this amount except $300.23 had been paid out on expenses and debts of the estate and other lawful items. The jury returned a verdict in favor of the plaintiffs for $1584.19. The defendant filed a motion for a new trial on the general grounds only.
It appears from the evidence that the administrator made no inventory of the estate and filed no proper returns during the approximately 20 years the assets of the estate were in his hands. He attempted to charge 2 1/2 percent commission for receiving and 2 1/2 percent for paying out funds which came into his hands, and he attempted to charge extra for expenses for trips which he claims to have made in connection with the estate. In addition to the $300.23 which he admitted in his answer that he then held, he admitted that he had deducted an additional $100 for a tombstone which had never been purchased. In his statement to the court and jury he offered to pay this $400.23. Without going into detail as to the evidence, the jury were authorized to find for the plaintiffs in the amount of their verdict, if indeed not more. Under such a situation as here presented, the burden was on the administrator to prove that he had administered the estate correctly, where there were no annual returns as required by law, and if returns, they were not as the law requires and not allowed by the ordinary. In this connection, see Ellis v. McWilliams, 70 Ga. App. 195 ( 27 S.E.2d 886). See also the Code, § 113-2006, as to forfeiture of commissions; § 113-2007, as to traveling and other expenses; and § 113-2008, regarding extra compensation for other extraordinary services.
The court did not err in overruling the motion for a new trial for any of the reasons assigned.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.