Griffin v. Securities Investment Co. , 53 Ga. App. 396 ( 1936 )

Per Curiam.

Mrs. J. H. Griffin filed an application for a year’s support to be set apart for her and her children from the estate of her deceased husband, J. H. Griffin. Objections thereto were filed by the Securities Investment Company, an alleged creditor of the estate. The ordinary approved the year’s support, and the case was appealed to the superior court. In that court the undisputed evidence showed that Mrs. Griffin was appointed administratrix of the estate in 1923; that two years’ support had previously been allowed her; that no litigation had occurred from 1923 to 1931 to prevent her from distributing the estate; that at the date of the application in question a debt against the estate existed which consisted of an assessment levied by the State superintendent of banks against Mrs. Griffin as administratrix of the estate of J. H. Griffin, to be satisfied from the property of the estate in her hands, on account of the ownership of certain shares of bank stock owned by J. IL Griffin at the date of his death and still held by his administratrix, the bank in question being insolvent. By order of the court a directed verdict against the year’s support was returned, and Mrs. Griffin excepted.

The controlling question is whether the assessment and execution issued by the State superintendent of banks against Mrs. Griffin as administratrix of the estate constituted a valid debt of that estate. If it did, then the third year’s support asked for by her was properly disallowed. Martin v. Gaissert, 139 Ga. 693 (78 S. E. 40). We think this question is answered adversely to the contentions of the plaintiff in error by the Code of 1933, § 13-1902, and the ruling in Clay v. Mobley, 171 Ga. 548 (156 S. E. 194). That section is as follows: “Persons holding stock as executors, administrators, guardians, or trustees shall not be personally subject to any liabilities as stockholders; but the estates and .funds in their hands shall be liable in like manner and to the same extent as the testator, intestate, ward, or person interested in such trust fund would be, if living and competent to act and hold the stock in his own name: Provided, that nothing herein contained shall relieve any executor, administrator, guardian or trustee from individual liability as a stockholder upon any unauthorized subscription for or investment in bank stock made by such executor, administrator, guardian or trustee.” And in Clay v. Mobley, supra, the foregoing provisions of the Code were set forth, and the court said: “By express provision of this statute, trustees are exempt personally from liabilities as stockholders; but the estates and funds in their hands are made liable in like manner and to the same extent as persons interested in such trust funds would be if the stock stood in. their own name. This statute makes the trust estates and funds in the hands of trustees subject to this liability in like manner and to the same extent as the beneficiaries of such estate and funds would be liable if the stock stood in their own name. This being so, this liability can be enforced by the superintendent of banks by an assessment and by the issuing of executions as in cases of stockholders generally.” Clark v. Clark, 167 Ga. 1 (144 S. E. 787), cited by counsel for the plaintiff in error, is easily distinguishable by its particular facts from the case just quoted; and if there be any conflict between the ruling in Clay v. Mobley, supra, and that in Mobley v. Phinizy, 42 Ga. App. 33 (155 S. E. 73), or in Gormley v. Phinizy, 46 Ga. App. 431 (167 S. E. 757), we are bound to follow the decision of the Supreme Court in the Clay case. In our opinion the court did not err in directing the verdict against the year’s support.

Judgment affirmed.

Broyles, C. J., and MacIntyre', J., concur. Guerry, J., dissents.