Harris v. Adams , 150 Ga. 204 ( 1920 )

Fish, C. J.

The Court of Appeals has certified a question to the Supreme Court for decision, the appropriate answer to which follows: Where an instrument purporting to be a will is duly probated in common form in pursuance of the Civil Code, § 3855, and letters testamentary are duly issued to the executor nominated in the will,- and recorded as provided by the statute, the executor may proceed with the regular administration of the estate. Maund v. Maund, 94 Ga. 479 (20 S. E. 360). Where an executor has qualified after the probate of the will in common form in manner indicated above, and after more than twelve months have expired since the qualification of the executor a creditor of the estate institutes a suit against the executor to recover a debt created by the testator, the institution of the suit is not premature.

No. 1676. May 14, 1920.

Question certified by Court of Appeals (Case No. 10-171).

Jordan & Harris, for 'plaintiff. Evans & Evans, for defendant.

(a) The facts that before probate of the will in common form an application had been presented to the court of ordinary to probate the paper in solemn form, and a caveat had been filed to such probate, and a judgment rendered by the court of ordinary setting up the will, and an appeal entered from a judgment of the court of ordinary to the superior court, and the suit by the creditor was instituted within less than twelve months after the judgment probating the will in solemn form, would not affect the case. If, pending the application to probate the will in solemn form, the ordinary had merely appointed as temporary administrator the person nominated in the will as executor, as provided in the Civil Code, § 3943, par. 10, a different question would arise.

All the Justices concur.