Bowers v. Grimes , 45 Ga. 616 ( 1872 )

McCay, Judge.

By the common law an administrator de bonis non could only call the previous administrator or executor or their heirs to turn over all unadministered assets: 1 Kelly, 81. But our Act of 1845, Cobb, 335, authorized the administrator de bonis non to call the previous administrator to account. This Act did not, however, require him to account. This Court, in Shorter et al. vs. Hargroves, 11 Georgia, 659, decided that this right in the administrator de bonis non was not exclusive, but that the persons interested in the estate might sue the estate of the former administrator directly. The Code does not seem to contain any express authority to the administrator de bonis non to compel an account. It is, however, implied by the language of several sections: See sections 2473, 2474, 2475, 2476. We think, therefore, the Act of 1845 is not inconsistent with the Code and is still of force. Section 2476 of the Code authorizes the heirs and creditors to sue the removed administrator, and there is nothing in the Code to alter the ^ld law as to this right against the representatives of a deceased administrator. Without doubt, this right existed at common law, indeed nobody else had it, since the administrator de bonis non had no such right. It results that our law now is as it was before the Code on this subject. The creditors and the heirs may, as they always might, call on the previous administrator or his representatives for an account and settlement. The administrator de bonis non may also do it. Rut we do not think it follows as a matter of course that he must do it. When there is anything in the nature of the estate, or the character of the parties, which specially casts this duty on the administrator de bonis non, he is liable for this neglect. But it must be a case of neglect. Certainly, it must appear that he knew of the devastavit, and that he was guilty of some positive neglect — some negligence not equally chargeable on the creditors themselves or upon the heirs or their guardians. Each case must stand on its own facts.

Judgment affirmed.