Lane v. Tarver ( 1922 )

Hines, J.

(After stating the foregoing facts.)

1. The executor qualified on August 3, 1914, and immediately took possession, control, and management of the property of the estate. He did not make returns of his receipts and expenditures on or before the July term, 1915, of the court of ordinary for the interim between his qualification and said term; but applied to the payment of his commissions on such receipts and expenditures the sum of $1111.60 from the funds of the estate. In paragraphs 16, 17, and 18 of the petition the plaintiff alleged the above facts. He further alleged that the executor, by his default in making his returns by that date, forfeited his commissions on receipts and expenditures during the year preceding the first Monday in July, 1915; and that he had not been relieved of such forfeiture by a special order of the court of ordinary. He sought to recover from the executor these commissions. The defendants demurred to these paragraphs of the petition, in which the plaintiff sought to recover from the executor and his surety the money of the estate which the executor had applied to the payment of these commissions, which the plaintiff alleged the executor had forfeited. The court sustained the demurrer to these paragraphs of the petition, and struck the same. The plaintiff assigns error on this judgment.

The court seems to have put its judgment on the ground, that the executor had one year from his qualification in which to make his return. This involves the proper construction of section 3992 of the Civil Code, which, in part, declares that " on or before the regular term of the court in July in each and every year, every administrator shall make a true and just account, upon oath, of his receipts and expenditures in behalf of the estate during the preceding year.” This law is applicable to executors. Civil Code, § 3892. What year is referred to in section 3992? Year, unless from the context or otherwise a different meaning is intended, means the calendar year. Civil Code, § 5. But the year referred to in this section is, we think, the year beginning with the qualification of the executor, and ending twelve months thereafter. This clearly appears from other code sections which govern administrators and executors in the management of estates. They are required to pay the debts of the estate, wholly or in part, at the expiration of the first year from their appointment. Civil Code § 3999. They are allowed twelve months from the dates of their appointment to ascertain the condition of the estates which they are administering. § 3997. No suit for the collection of any debt of the testator can be commenced against the executor until the expiration of twelve months from his qualification. § 4015. No action on any joint obligation of the testator and another can be brought against the executor until twelve months after the probate of the will. § 5596. If a defendant die pending suit, the plaintiff may sue out a scire facias immediately after the expiration of twelve months from the probate of the will, requiring the executor to appear and answer to said action. § 5599. A legatee can, after expiration of one year from the qualification of the executor, cite him to appear before the ordinary for a settlement of his accounts. § 4073. So we think our statutes establish a fiscal year for accountings by administrators and executors, which begins with the date of their appointment; but for the purposes of this case it is unnecessary to determine whether the word year in the code section means the calendar year, or this fiscal year. Whether one or the other, the executor must make his returns "in each and every year.” He can not miss a year. Now at what time in the year, calendar or fiscal, must he make his returns? Can he do so at any time during the year? The code fixes the period of the year when he shall make his returns. He shall do so “ on or before the regular term of the court in J uly.” This is plain.

But it may be said that guardians can malm their returns within twelve months after their appointment, “ and by the first Monday in July in every year thereafter” (Civil Code, § 3059); and that, construing this law with section 3992, the intention is to require an executor to make his returns at any time within twelve months. Separate and distinct methods are provided for the making of returns by guardians and executors. A guardian can make his first return at any time within twelve months after his appointment. The executor, must make his first return by the first Monday in July of the first year after his appointment, and one in each and every year thereafter by the same date. The ordinary can only cite a guardian to appear and show reason for his delay in making his returns after the expiration of twelve months from his appointment; and the guardian only forfeits his commissions when he fails to make his return before the end of the year. Civil Code, § 3063. Immediately after the session of the July term of the court of ordinary in each year, the ordinary can cite the executor to show cause for his neglect. Civil Code, § 3996. Byne v. Anderson, 67 Ga. 466 (2), 473. The executor failing to make annual returns, as required by section 3992, forfeits all commissions for transactions during the year within which no return is made, “ unless the ordinary, upon cause shown, shall, by special order on the minutes,” relieve him from such forfeiture. Civil Code, § 4069. We conclude that the construction of section 3992 of the Civil Code is not affected by section 3059; and that an executor must make his first return of receipts and expenditures by the first Monday in July, although he may have qualified within less than a year prior to that date.

Frequent settlements make fast friends, and prompt returns by executors conduce to the faithful administration of the estates committed to their charge. When an executor fails to make his annual returns, as required by section 3992, he forfeits all commissions for transactions during the year within which no return is made. Civil Code, § 4069. A special order on the minutes is necessary to relieve him from such forfeiture. Doster v. Arnold, 60 Ga. 316; McBride v. Hunter, 64 Ga. 655. Formerly, a failure to make returns forfeited all commissions. Cobb’s Dig. 306; Adair v. St. Amand, 136 Ga. 1, 8 (70 S. E. 578). Returns are now to be made by the first Monday in January of each year. Ga. Laws 1920, p. 79.

The court therefore erred in striking those paragraphs of the petition in this case which sought to have the executor account for moneys of the estate which he retained for commissions which had been forfeited.

2. The court overruled the plaintiff’s sixth exception of fact to the auditor’s report. The court also overruled the plaintiff’s fourth, fifth, sixth, and eighth exceptions of law, and his second, third, fourth, and fifth exceptions of fact, in so far as the life tenant was affected by the findings of the auditor in said exceptions complained of; but sustained all of said exceptions so far as the rights of the remaindermen are concerned. The court overruled the plaintiff’s seventh exception of law and his first exception of fact. To this judgment the plaintiff excepted and assigns error thereon. We will deal first with the plaintiff’s sixth exception of fact. In this exception the plaintiff complains of the recommendation of the auditor that “the costs and fees of the auditor be equally divided between the parties in this case.” The court adopted this suggestion of the auditor, and in the final decree adjudged that the costs and expenses of the proceeding, including the auditor’s fee, be taxed equally, one half against the plaintiff and one half against the defendants. To this judgment of the court overruling the sixth exception of fact, and to this portion of said decree, the plaintiff excepts and assigns error thereon, on the ground that it is contrary to law and the principles of equity and justice, in that the plaintiff had prevailed in establishing his claim against the defendants, and the evidence disclosed that the executor was guilty of gross misconduct in managing the estate and in misappropriating trust funds. Did'the court abuse his discretion in apportioning the costs between the plaintiff and the defendants? This was an equitable.proceeding; and it fell within the province of the judge to determine upon whom the costs should fall. Civil Code, § 5423. Under this power the judge can decide upon whom the payment of the fees of an auditor shall fall, or how the payment of such fee shall be apportioned between the parties litigant. Fitzpatrick v. McGregor, 133 Ga. 332, 344 (65 S. E. 859, 25 L. R. A. (N. S.) 50). It is true that the judge should exercise a sound discretion in deciding by whom the costs should he paid. He has no arbitrary power in this matter. Hamilton v. DuPre, 103 Ga. 795 (30 S. E. 248). The last-cited case is, so far as we have found, the only one in which the judgment of the lower court has ever been reversed for abuse of discretion in determining upon whom the payment of the costs should fall. Lowe v. Byrd, 148 Ga. 388 (96 S. E. 1001). We can not say that the judge abused his discretion in this matter in this case. The plaintiff undertook to require the administrator to come “to a full, true, and just accounting . . for all the assets, real and personal, belonging to the estate . . and coming into the hands or under the control of said Tarver, as executor of said estate.” The plaintiff did not secure such an accounting, and under the facts of the case was not entitled to such a comprehensive accounting. Yet the defendants had to fight the case as laid by the plaintiff in his pleadings. As the plaintiff recovered much less than he sought to recover from the defendants, we can not say that the trial judge abused his discretion in awarding costs and expenses against the plaintiff and the defendants.

In his first exception of fact the plaintiff excepts to the auditor’s finding “that'J. 0. Bridges was authorized to receive from the defendant, Tarver, for and in behalf of the beneficiaries of J. C. Hudspeth, the property of the estate which was turned over to Bridges by Tarver, and that under the evidence in this case the said beneficiaries and the plaintiff in this case are estopped to claim that the delivery of this property by Tarver to Bridges amounted to a devastavit; and alleges that said finding was contrary to the evidence, and without evidence to support it.” The plaintiff’s seventh exception of law asserts that the auditor erred in finding that “ as a matter of law, . . under the undisputed evidence in this case, the turning over by the defendant Tarver to J. O. Bridges of all the property of the estate in his hands after the purported appointment of Bridges as administrator de bonis non was not a devastavit.” The plaintiff claims that said ruling was contrary to law and was unwarranted by the evidence. So we will deal with this exception of fact and this exception of law together, as both relate to the same subject-matter. Are both of these findings without evidence to support them? J". B. Tarver was the qualified executor of the'estate of J. C. Hudspeth. J. B. Tarver filed in the court of ordinary his petition in which he recited his appointment and qualification as executor of the will of said Hudspeth on August 3, 1914, that he had not fully administered said estate, and that he desired to resign said trust, bebause he did not have sufficient time to devote to the discharge of his duties as such. He named J. 0. Bridges as a suitable person qualified and willing to accept this trust. Attached to this petition was a writing signed by Mrs. J. C. Hudspeth, Mrs. J. H. Crozier, and Julius E. Hudspeth, as sole heirs of the estate of J. C. Hudspeth, in which they waived notice of the resignation of Tarver as executor of said estate, and agreed and requested the ordinary to appoint J. 0. Bridges to succeed J. B. Tarver as executor of said estate.’ Attached to said petition was Bridges’ written acceptance of the appointment of executor of the estate of J. C. Hudspeth, “ in compliance with the request of the above-mentioned parties.” On September 20, 1915, the ordinary passed an order, purporting to have been passed during the August term, 1915, of the court of ordinary of Early county, in which the resignation of Tarver was allowed as prayed, and Bridges was appointed to succeed him.

There is evidence in the record tending to show, and authorizing the auditor to find, that the legatees had become greatly dissatisfied with Tarver’s management of the estate, and wished him removed; that all the legatees, who were sui juris, had selected Bridges to act as executor; that they had employed an attorney to secure Tarver’s removal and Bridges’ appointment as administrator; that Tarver’s resignation was forced; that the reason for his resignation, stated in his petition to resign, was not the true reason moving him to that eourse/that previously to the passing of the order allowing his resignation, and appointing Bridges as administrator, the former as executor had turned over to the latter lands and personal property of said estate amounting to $80,920.06, for which Bridges gave his individual receipt, not as executor, said receipt being dated August 3, 1915, and having been filed in the office of the ordinary on September 20, 1915, the date of said order; that all ■this was done in pursuance of the plan and arrangement of said legatees to get rid of Tarver, and have Bridges appointed administrator in his place; and that when said order was passed both Tarver and said legatees believed that said order was valid, the whole transaction having been conducted by the attorney employed to represent the legatees in this matter. All parties now concede that this order was null and void.

The plaintiff claims that when Tarver as executor turned over the property of this estate to Bridges under this void appointment, which Tarver as a matter of law was bound to know, this constituted a devastavit for which Tarver as executor and the surety on his bond are liable. The plaintiff insists that Tarver is liable for all the acts of Bridges in assuming to exercise the authority of executor, his true relation to Tarver being that of a mere agent acting under his guidance in administering the estate. Counsel for plaintiff rely on the case of Rusk v. Hill, 117 Ga. 722 (45 S. E. 42). In that case the administrator, without consulting the heirs of his intestate, allowed one not an heir to participate with them in the distribution of the assets of the estate, which, this court court held, he did at his peril; and that the lawful heirs were not estopped from subsequently calling upon him for an accounting, notwithstanding they may have known of such misapplication of trust funds and raised no objection thereto, if at the time they ignorantly supposed he was properly administering the estate, and in no way misled the administrator into the belief that he was acting with their approval and consent. The principle announced in that case is widely different from the law applicable to the facts •of the case at bar. All the legatees of this estate were of age. They were anxious to have the executor removed. They selected his successor. They employed an attorney to take steps to remov§ the executor and to have appointed in his stead the person of their choice. They wished to get the estate out of the hands of the executor named in the will, and to get it into the hands of the person whom they sought to have appointed in the place of the duly qualified executor. The whole transaction by which the executor was removed, and the person of their choice appointed in his place, was done under the guidance and direction of the attorney of the legatees. When the order was granted by the court of ordinary removing the executor and appointing Bridges in his place, both the executor and the legatees supposed that the same was valid, and that the executor was properly removed, and that Bridges was properly appointed executor of the estate in his stead. If the executor, on his own motion, had moved in this matter, without the consent and participation of the legatees therein, the princple ruled in Rusk v. Hill, supra, would apply.

The legatees under a will, when the interests of minors and creditors are not involved, can distribute the same by consent, when and how they please. Amis v. Cameron, 55 Ga. 449. Legatees under a will, when all of them are of age, can divide the estate among themselves, although the will directs that it shall be divided by commissioners appointed by the ordinary. Hatcher v. Cade, 55 Ga. 359. This court has said: “If a testator can give legal directions as to the management of his estate after his death, there seems to be no reason why the legal and equitable owners of an estate after an intestate’s death, who are sui juris, can not do the same thing by directing the operation of the business after all the debts of the estate are paid) to the extent of their own interest.” Daniel v. Bank, 147 Ga. 695, 698 (95 S. E. 255).

So, if the executor is willing to resign, and, at the request of the legatees, does offer to resign, so that a person of their choice can be appointed in his stead, as executor, and in pursuance of an agreement between him and the legatees he files in the court of ordinary a petition praying for an order allowing him to resign, and asking the appointment of the person chosen by the legatees as his successor in the trust, which order is granted with the knowledge, consent, and approval of the legatees, both supposing such order valid, and under an arrangement between the executor and the legatees by which the excutor had previously turned over the estate to the person so chosen as his successor, the latter, when it develops that said order is void, will be treated as the agent of the legatees rather than that of the executor; and the executor and his surety will not be held for a devastavit by reason of having turned over the estate to such person so sought to be appointed thé successor of the executor in the trust under said void order. The person so appointed executor, although the appointment is void, will be deemed and treated as the agent of the legatees; and his possession of the estate, so acquired, will be deemed that of the legatees. So we are of the opinion that the court did not err in overruling the plaintiff’s first exception of fact and his seventh exception of law.

The plaintiff, in his fourth exception of law and second exception of fact to the auditor’s report, excepts to the auditor’s finding that the plaintiff and the usees were estopped by their acts and conduct in calling the executor to an accounting for moneys of the estate expended in conducting the farming operations for the year 1915. The court sustained these exceptions so far as the remaindermen were concerned; and with this part of his ruling we do not deal. Were the plaintiff and the life-tenant estopped from calling the executor to account for moneys of the estate expended by him in conducting these farming operations during 1915? Counsel for plaintiff contend that the attempted substitution of Bridges as executor in the place of Tarver was a nullity, which Tarver was bound as a matter of law to know; and that the turning over by Tarver as executor to Bridges of the property of the estate was a palpable devastavit. This contention would be correct if the legatees had not participated in the selection and appointment of Bridges as successor to Tarver. Rusk v. Hill, supra. We have already dealt fully with the question of Bridges’ relation to the legatees under his void appointment as successor to Tarver in this executorship; and we have held him to be, under the facts and circumstances of this case, their agent in receiving from the executor the property of this estate, and in his subsequent management thereof. Counsel for the life-tenant contend that Tarver was bound to know that the substitution of Bridges as executor was illegal and void, and that to- turn over to him the property of the estate under such circumstances amounted to a devastavit. They rely in this contention upon certain authorities to which we will now refer.

In making distribution of an estate, an administrator gave one share to the mother and to her children, under a mistake of law, the fact being that it belonged to the mother alone, who consented, under the same mistake of law, to said distribution, hut did nothing to mislead the administrator, who was not at all influenced in his action by her consent. It was held that the mother was not estopped by her acts in claiming of the administrator her full rights as an heir at law. Davis v. Bagley, 40 Ga. 181 (2 Am. R. 570); Id. 45 Ga. 108. There is a wide difference between that case and the case at bar. In this ease what the executor did was at the urgent solicitation of the legatees. He resigned under pressure. What he did in attempting to resign his trust, and in turning over the property of the estate to his proposed successor, was all done certainly ,at the request of the life-tenant, and under the guidance and direction of her attorney at law, who was employed to secure the resignation of the executor and the substitution of Bridges in his place. The crops grown on the farms during 1915 were turned over by the executor to Bridges at her instance and request. The resemblance between the case in 40 Ga. and this ease consists in the fact that in both cases the parties acted under a mistake of law; but in the former case the heir at law got nothing by the mistake, and by the payment by the administrator of a part of her distributive share to her children. In the case at bar the life-tenant succeeded in getting from the executor the property of the estate with crops of 1915, and in placing them in the hands of her chosen manager thereof.

A testator by his will, probated in 1856, gave directly to his daughter, then a child, the residue of his estate. She married in November, 1866, and in 1868 her husband settled with'the executor and received and receipted for her legacy, acting for himself, and not as the agent or the trustee of his wife, This court held that the wife was not bound by his receipt. Windsor v. Bell, 61 Ga. 671. That case and the case at bar are wide apart. There the wife did nothing to mislead the executor. The payment to the husband of her legacy was not done with her knowledge or consent. There was no decisive evidence of ratification by the wife; and it was held that she could not ratify, so far as her legacy went to pay her husband’s debts. What was done in the case at bar was all done with the consent of the life-tenant and at her request.

The case at bar is more like Rabun v. Rabun, 61 Ga. 647, where it was held that “If a legatee of full age, through ignorance or mistake of his legal rights, consents to be excluded from sharing in a fund about to be distributed by the executrix, his mother, and the distribution is made accordingly, the executrix will be free from any liability to him for money thus, with his express consent, innocently paid to other parties.”

It is true that where an executor operates the farms of his testator after the current year, any loss thereby sustained would not fall upon the estate, and should not be allowed the executor. Poullain v. Brown, 82 Ga. 412 (2) (9 S. E. 1131); Johnson v. Parnell, 60 Ga. 661. But the auditor found, and his finding is supported by the evidence, that the farming operations of 1915 were not at a loss. The value of the crops produced exceeded the cost of production; and these crops were all turned over'by the executor to Bridges as his successor. As we have held that Bridges was the agent of the life-tenant in receiving these crops and in disposing of them, as their value exceeded the cost of making them, the ex-executor should not be held to account for the moneys of the estate expended in conducting the farm. Even if the use of the money of the estate in these farming operations constituted a devastavit for which the executor was liable, yet if the life-tenant was not injured thereby she would not be entitled to call him to account and have judgment against him for moneys of the estate so expended. Gwinn v. Trotter, 112 Ga. 703, 705 (38. S. E. 49).

It is immaterial, in view of the conclusion which we have reached as to Bridges’ relation to the legatees, what became of these farm products after they went into the hands of Bridges. So we do not think that the auditor erred in his findings of law and fact in reference to this matter; and the court below did not err in overruling these exceptions so far as the life-tenant was concerned.

In his fifth exception of law to the auditor’s report the plaintiff excepts to the overruling of his motion to exclude all evidence, offered by the defendants, as to what it was worth to oversee the farming operations on the farms of the estate during the year 1915, on the ground that the executor had no authority to carry on these operations, and for this reason would not be entitled to any extra compensation for so doing. In the sixth exception of law the plaintiff excepts to the auditor’s finding that the executor was entitled to extra compensation “for his services in operating the farms of the estate.” The objection to this finding is that it is contrary to law and wholly unauthorized under the evidence. In his third exception of fact to the auditor’s report the plaintiff excepts to the auditor’s finding allowing the executor the sum of $1200 by way of extra compensation for his services in operating the farms of the estate. Plaintiff insists that said finding is not only excessive in amount, but contrary to law and without evidence to support it. We will deal with these exceptions together. The court overruled these exceptions so far as the life-tenant was affected by the findings of the auditor in said exceptions complained of, and the plaintiff assigns error on this ruling.

An executor can only continue the business of his intestate until the expiration of the current year. Civil Code, § 4012. The life-tenant, being sui juris, as we have undertaken to show, could authorize the executor to manage the estate, so far as her interest therein was concerned, in any manner that she might see fit. If she did not originally authorize him to conduct the farming business during 1915, she could have ratified his unauthorized act in so doing. If, after the executor had pitched and cultivated the crops on the farms in 1915 until they were practically matured, she procured him to resign and to turn over these crops to Bridges to be disposed of by him, the latter being her agent, as we have undertaken to show, there would have been a ratification on her part of the act of the executor in operating these farms during 1915. This being so, the executor would be entitled to extra compensation for these services, the same not falling within his ordinary duties as executor. When the plaintiff for the use of the legatees filed this equitable proceeding calling him to account, he could set up his claim for this extra compensation, although the same had not been allowed by the court of ordinary. Adair v. St. Amand, 136 Ga. 1 (6), supra. There being evidence to sustain the auditor’s finding of fact and his findings of law in this matter, the court did not err in overruling these exceptions so far as the life-tenant was concerned.

But exception is taken by the plaintiff to that part of the decree of the court finding that he was entitled to recover, for the use only of the remaindermen, $4979.57 illegally expended by the executor in the farming operations, $352.76 expended in making betterments and repairs on the lands of the estate, the sum- of $1200 reserved by the executor for extra compensation for conducting these farming operations, and $262.08 illegally reserved by .the executor as commissions on moneys invested in bank stock and expended by him in said farming operations. The error assigned is that these recoveries should be for the life-tenant as well- as the remaindermen. All of these sums constituted portions of the corpus of the estate. To the corpus of the estate the life-tenant has no title or claim. She would only be entitled to the rents, issues, and profits thereof. So she would not be entitled to a judgment in her behalf for any portion of these crops. She would be entitled to have the same invested, and to the income therefrom. For this reason the court properly rendered judgment for such portions of the corpus of this estate in favor of the remaindermen alone.

4. In the final decree the court further adjudged that the defendants have judgment over against said life-tenant for certain of the several sums of money for which judgment was so rendered in favor of the plaintiff for the use of the remaindermen. These sums consisted of the above sum of $4979.57 expended by the executor in carrying on the farm operations, the sum of $352.64 expended in making betterments and repairs upon the real estate, and the sum of $1200 reserved by the executor as extra compensation for conducting said farming operations. The plaintiff excepted to this portion of the decree, and assigns error thereon on the grounds that it is contrary to law, to the principles of equity and justice, was unwarranted by the evidence or the pleadings, and was rendered without giving to the life-tenant her-day in court. It is earnestly insisted that the life-tenant is not chargeable with these sums of money so expended. If they were used with her express authority, then she would be clearly liable for them, the same constituting a part of the corpus of the estate in which she only had a life-interest. If they were used by the executor, without her authority, in conducting said farming operations, in making betterments and repairs upon the real estate, and as compensation for his services in managing the farms of said estate in which she had a life-interest, and she afterwards ratified his acts and doings in these matters, she would likewise become liable to restore the corpus of the estate thus used and expended for her use and benefit. .The life-tenant alone was entitled to the profits made in these farming operations. She alone would be liable for any extra compensation to which the executor would be entitled for services in managing these farms for the year 1915. She alone would be liable for the repairs and betterments put upon the real estate. Having either originally authorized these expenditures of the money of the estate, or, if they were made without her authority, having afterwards ratified them, she thus became liable to account therefor. 1 So when judgment was rendered for these expenditures against the executor and surety, the latter was subrogated to the rights of the remaindermen against the life-tenant; and the court did right in rendering judgment over in favor of. the defendants against the life-tenant?^

5. On October 6, 1921, the defendants offered an amendment to their answers, in which they alleged that on or about August 1, 1915, the executor had turned over to Bridges, as the authorized agent of all the beneficiaries, the entire estate which had come into his hands as such executor, after paying the debts of the testator, and the expenses of administration, and that the same was duly accepted by said agent and beneficiaries as the property of said estate. In this amendment the defendants further alleged, that if the court should allow the plaintiff to recover for the use of the remaindermen, for any funds paid out, or for expenses incurred by the executor in managing said estate, and that the same were incurred, directed, or authorized by the life-tenant, then the defendants would be entitled to recover and should have judgment over against the life-tenant for any sum or sums, recovered against them by said remaindermen; and they prayed that if the plaintiff should recover for the use of remaindermen any sums against these defendants, the latter have judgment over against the life-tenant therefor. The plaintiff objected to the allowance of said amendment, on the grounds that it came too late, that it introduced new and distinct issues not covered by the pleadings previously filed, that it was not supported by the evidence introduced before the auditor, was not germane to any issue before the court for determination; and on certain special grounds which need not be mentioned.

Generally, pleadings are amendable at any stage of the cause. Civil Code, § 5681. It is too late, after the court has approved the auditor’s report, for the defendant to file, by way of amendment, new and independent defenses to the 'plaintiff’s action; but it is always permissible to amend pleadings, even after the auditor’s report has been approved by the court, so that the same will support a decree administering the proper equitable relief to all the parties upon the facts reported by the auditor. Milner v. Mutual Benefit Building Association, 104 Ga. 101 (3, 4) (30 S. E. 648). This was the purpose of the amendment which was allowed; and this is always permissible. The pleadings can always be adjusted by amendment to the facts as found by the auditor, or proved before the jury.- If the plaintiff wished further time to introduce additional evidence, in view of the 'amendment, he should have applied to the court to have the case recommitted for this purpose.

A new trial is granted in this case solely on the ground that the court erred in striking that portion of the petition which sought to recover from the executor the funds which he appropriated in payment of his commissions which had been forfeited by his failure to make his return in due time; and we direct that on the next trial this issue alone be tried and determined.

Judgment reversed in part and affirmed in part, with direction.

All the Justices concur.