Opinion
42076.
SUBMITTED JUNE 6, 1966.
DECIDED JUNE 27, 1966.
Action to recover estate. Fulton Civil Court. Before Judge Webb.
Henry M. Henderson, for appellant.
Gettle Jones, M. David Merritt, for appellees.
The petition in this case did not set forth a cause of action under Code § 113-1102 and the court erred in overruling the general demurrer which was renewed after an amendment was filed to the petition.
SUBMITTED JUNE 6, 1966 — DECIDED JUNE 27, 1966.
Mrs. Florence M. Riales, Rutherford B. McKissick, Jr., and Mrs. Claudie M. Gunn sued Mrs. Inez M. Robbins to recover $6,000, representing twice the value of plaintiffs' share in the estate of Annie M. McKissick, deceased. The petition as amended alleged: "(3) Petitioners and defendant along with one Gladys M. Hutto are the sole heirs-at-law of Annie M. McKissick, who died intestate in Fulton County, Georgia, on April 15, 1963. (4) That the estate of Annie M. McKissick consists of two (2) common stock certificates of sixty-two (62) shares each of Sears Roebuck Co., a corporation, plus quarterly dividends declared on said stock in the months of January, April, July and October in the years since the death of said Annie M. McKissick. (5) That all of said estate is the possession of the defendant. (6) That there is no administrator of said estate and that said estate is without debts. (7) That Annie M. McKissick had 3 children to wit: the defendant, Mrs. Inez M. Robbins; Gladys M. Hutto and Rutherford B. McKissick. Rutherford B. McKissick predeceased Annie M. McKissick leaving 3 children of his own surviving, to wit: Mrs. Florence M. Riales, Rutherford B. McKissick, Jr., and Mrs. Claudia M. Gunn, who are the petitioners here. Petitioners are entitled to their father's one-third share of their grandmother's estate. (8) That defendant has wrongfully converted to her own use petitioners' share of said estate, is exercising control over said share despite the objections of your petitioners and is depriving petitioners of said share. (9) That defendant has wrongfully intermeddled with petitioners' share of said estate by refusing to give up said share, treating said share as her own property and demanding that petitioners assign their share to her. (10) That the value of said estate is $9,000. (11) That the value of one-third of said estate is $3,000. Wherefore, petitioners pray: (a) That process issue requiring the defendant named to appear and answer this complaint in terms of law provided; (b) That petitioners have judgment against defendant for $6,000, plus costs; (c) And for all further relief as to the court seems just, proper and necessary."
The court overruled the renewed general and special demurrers to the petition as amended and the defendant appealed from this judgment.
This action is without question one based on Code § 113-1102, which is as follows: "If any person, without authority of law, wrongfully intermeddles with, or converts to his own use, the personalty of a deceased individual whose estate has no legal representative, he shall be held and deemed an executor in his own wrong, and as such shall be liable to the creditors and heirs or legatees of such estate for double the value of the property so possessed or converted by him; nor shall such executor be allowed to set off any debt due to him by the deceased, or voluntarily paid by him out of the assets. If such executor dies, his legal representatives shall be liable in the same manner, and to the same extent, as he would be if he were still living." This Code section is in derogation of common law and must be strictly construed. It is a harsh remedy in that it provides a one hundred percent penalty based on the value of property involved plus the denial of benefits which could otherwise accrue to the defendant. For a petition under this section to be good as against a general demurrer it must show intermeddling in bad faith, possession amounting to a conversion in bad faith, or an attempt to deal with the property in question as an executor, in bad faith. The general allegations of the petition to the effect that the defendant had wrongfully converted the property to her own use and was exercising control over the same and had wrongfully intermeddled with petitioners' share must yield to the specific allegation that the defendant refused to give up said property by treating it as her own "and demanding that petitioners assign their share to her." The petition does not allege the necessary ingredient in that it is not alleged that the defendant is acting in bad faith and not under a bona fide claim of right whether the bona fide claim is founded or unfounded. The petition also shows on its face that the defendant could not perform the function of an executor with reference to the stock and dividends because she could do nothing with the property without the consent of the plaintiffs to a sale or transfer of the property by endorsing the dividend checks and transferring the certificates of stock. See as to the rulings above: Chattanooga Stove Co. v. Adams, 81 Ga. 319 ( 6 S.E. 695); Willingham v. Rushing, 105 Ga. 72 ( 31 S.E. 130); Robinson v. Murray, 198 Ga. 690 (10b) ( 32 S.E.2d 496).
The court erred in overruling the renewed general demurrer to the petition.
Judgment reversed. Frankum and Pannell, JJ., concur.