Cosby v. Weaver , 107 Ga. 761 ( 1899 )

Lumpkin, P. J.

By his last will and testament John C. ..Maund declared that it was, for sufficient reasons, incumbent upon him to specially provide for his unmarried daughter, .'Ida J. Maund. To this end he directed that his entire estate, both real and personal, be set apart for the maintenance and support of this daughter, and that all the revenues arising therefrom be thus applied so long as she remained unmarried; and further, that in case these revenues were insufficient for her support and maintenance, his executors and executrix should for 'this purpose encroach upon the corpus itself. The testator divided his estate amongst his children, giving to this-daughter more than a double portion. He appointed a brother and a son executors, and this daughter executrix, of his will, expressly provided therein that they should not be required to give bond or security, and relieved them from making any appraisement of his estate or from applying to the court of ordinary or any other court for leave to sell any of the property. In addition, the will contained a clause expressly conferring upon the executors and executrix power to sell and make titles to the property therein mentioned, and to do every act which the testator-in life was capable of doing, except to alter any of the provisions of the will. Upon the death of the testator,- one of the executors and the executrix qualified. Subsequently this executor died, leaving her the sole representative of the estate. She had in the meantime intermarried with J. J. Weaver. The present case arose as follows: Fannie-Cosby and others, devisees and legatees under the will, filed a petition, charging various acts of waste and mismanagement-on the part of the executrix, and praying that, in default of her giving bond for the faithful performance of her duties as executrix, her letters testamentary be revoked. A trial was-had in the court of ordinary, and a judgment was rendered in accordance with the prayer of this petition. The case went-by appeal to the superior court, and was there referred to an auditor, who submitted a lengthy and detailed report of the actings and doings of the executrix, together with a finding-that the estate had in nowise suffered from mismanagement, that she was solvent, and that her letters should not be revoked. The plaintiffs filed numerous exceptions to the report of the auditor, all of which were overruled, and the report made the judgment of the superior court.

It is not our purpose to enumerate or discuss separately all of these various exceptions. Most of them raised purely technical points as to the admissibility of evidence, some of which were apparently well taken, but they did not relate to matters of sufficient importance to authorize either the court below or this court to set aside the general conclusion reached by the auditor. There is, however, one question presented which requires special mention. The auditor found, and it was not denied by the defendant, that she had failed to make returns as executrix. In the absence of any explanation of -her omission to do so, this might well be treated as a sufficient ground of removal; but an explanation which We regard as satisfactory was in fact given. It appeared that Mrs. Weaver was honestly of the opinion that, under the broad powers' conferred upon her by the will, it was not incumbent upon her to make returns, and that in this opinion she was confirmed by the ordinary. In her answer to the petition she expressed a willingness to make full returns of all her receipts and disbursements, in the event it should be adjudicated she was not by the will exempted from so doing. In view of these facts, we have no hesitation in holding that, under the evidence reported by the auditor, the judge of the superior court' rightly concluded that the executrix, in failing to make returns, had not rendered herself subject to be summarily removed from the execution of the trust with which she was clothed under the will. While a failure to -make returns may often be cause for removal, there is no compulsory mandate of the law that in every case such failure shall of itself be regarded as imperatively demanding the removal from office of an administrator or executor. As was said in Wellborn v. Rogers, 24 Ga. 558, such failure is unquestionably “an omission of duty, and therefore a breach of trust, and throws on him the burden of proving to the satisfaction of the court and jury that he had discharged the duty of his trust with fidelity. ” But whether or not his letters shall be revoked for this reason alone is a matter which rests in the sound discretion of the court. Civil Code, § 3402. No exception was taken in the court below to the order referring this case to an auditor, and no question was raised here as to the propriety of giving the case that direction. We therefore make no ruling on this point, but simply deal with the case as it comes to us.

Judgment affirmed.

All the Justices concurring.