Eddleman v. Lewis , 58 Ga. App. 177 ( 1938 )

Stephens, P. J.

1. Although as required by law the payee in an administrator’s bond is the ordinary (Code, § 113-1217), nevertheless, where there has been a devastavit, a suit may be maintained against the principal and the sureties on the bond by the person who was the plaintiff in a suit in which a judgment de bonis testatoris was obtained against the administrator. Code, § 3-108, wherein it is provided that as a general rule an action on a contract must be brought in the name of the party in whom the legal interest in the contract is vested, has no application to the statutory bond required of an administrator; but § 113-2101, which gives the right to a creditor of the administrator to bring suit in his own name on the bond, is applicable and controlling.

2. In a suit by a creditor of the estate against the administratrix as principal, and the sureties on the bond of the administratrix, which was made payable to the ordinary, where it appeared in the petition that the plaintiff had recovered a judgment de bonis testatoris against the administratrix, and that there had been a devastavit committed by the administratrix, the petition set out a cause of action, and the court did not err in overruling the general demurrer.

Decided July 2, 1938. A. B. Wilson, for plaintiff in error. Hewlett & Dennis, B. W. Fountain, contra.

Judgment affirmed.

Sutton and Felton, JJ., concur.