Bailey v. Waldrup

1. Where one who claimed to be an adopted son of a deceased person, and by reason thereof the sole heir at law, conceded that he had not been legally adopted, and where no judgment or decree establishing virtual adoption was claimed or shown, such person was without right or authority to select one to be appointed as administrator of the estate of the deceased. A written selection by such person was without force or effect, and was not entitled to consideration in a contest between the next of kin for administration of the estate of the deceased; and the court properly so ruled.

2. Where the evidence showed that the sole heirs at law and next of kin equally near in degree of the deceased consisted of twelve nieces and nephews, a majority of whom had selected in writing, as their choice, one of their number who was an applicant to be appointed administratrix of the estate of the deceased, and it further appeared that the one selected was of sound mind and laboring under no disability, the jury in the superior court, on appeal from the court of ordinary, was authorized to find in favor of said applicant, appointing her administratrix de bonis non of the estate of the deceased.

3. The grounds of the motion for new trial show no error. The court did not err in overruling the motion for new trial.

DECIDED MARCH 9, 1943. REHEARING DENIED MARCH 26, 1943. Quincy B. Waldrup filed her application in the court of ordinary of Butts County, asking to be appointed administratrix de bonis non of the estate of Mrs. Emma B. Maddox, deceased. She attached to her application a writing wherein a majority of the next of kin of the deceased, and who were a majority of those interested as distributes of the estate, selected the applicant as the person to be appointed administratrix. A caveat to the application was filed by Kirby Cheek Maddox, in which he claimed that he was the adopted son of the said deceased and as such was entitled to her estate, and asked that J. L. Bailey Sr. be appointed as administrator. He alleged that Quincy B. Waldrup was inexperienced and incapable of managing and administrating said estate, and charged that she had colluded and conspired with her brother, W. E. Waldrup, who was originally appointed administrator and who had been removed for waste and mismanagement, in preventing and obstructing the formal adjudication of caveator as sole heir of the deceased, and in preventing the administration and distribution of the estate to the persons entitled thereto. J. H. Jackson and Henry W. Jackson, two of the nephews of Mrs. Emma B. Maddox, selected in writing J. L. Bailey Sr. as their choice to be appointed administrator, and their attorney at law appeared for them in the court of ordinary and adopted the caveat of Kirby Cheek Maddox. J. L. Bailey Sr. was appointed administrator at the hearing in the court of ordinary. On appeal to the superior court a verdict and judgment were rendered appointing Quincy B. Waldrup administratrix de bonis non of the estate of Mrs. Emma B. Maddox. The exception is to the overruling of the caveator's motion for new trial.

1. The contention of counsel for the plaintiff in error that Kirby Cheek Maddox was the adopted son of Mrs. Emma B. Maddox and had the right to select J. L. Bailey Sr. to be appointed as administrator of her estate can not be sustained, as it was conceded that he had not been legally adopted, and no judgment or decree establishing virtual adoption was claimed or shown. SeeCrawford v. Wilson, 139 Ga. 654 (78 S.E. 30, 44 L.R.A. (N.S.) 773).

2. It appears from the evidence that Mrs. Emma B. Maddox had two sisters, Mrs. Waldrup and Mrs. Jackson, who both predeceased her. Mrs. Waldrup left ten children, and Mrs. Jackson left two children; and these nieces and nephews, all sui juris, were the next of kin and the sole heirs at law of Mrs. Maddox. Nine of the Waldrup children selected in writing their sister, Quincy B. Waldrup, as their choice as administratrix of the estate of Mrs. Maddox, and the two Jackson children selected J. L. Bailey Sr. as their choice to administer said estate. The Code, § 113-1202, provides: "In the granting of letters of administration of any kind, the following rules shall be observed, the applicant being required, in all cases, to be of sound mind, and to be laboring under no disability. . . If there shall be several of the next of kin equally near in degree, the person selected in writing by a majority of those interested as distributes of the estate, and who are capable of expressing a choice, shall be appointed." See Mattox v. Embry, 131 Ga. 283 (62 S.E. 202); Pate v. Pate, 28 Ga. App. 798 (2) (113 S.E. 50). The evidence showed that the applicant, Quincy B. Waldrup, was at the time of the trial, and had been for a period of eight years, employed as a bookkeeper in a bank in Griffin; where she lived, and it was not shown that she was laboring under any disability that would prevent her from acting as administratrix of said estate. Under the law and the evidence, the jury was authorized to find in favor of the application of Quincy B. Waldrup, appointing her administratrix de bonis non.

3. Grounds 1, 2, 3, 4, 5, and 6 of the amendment to the motion for new trial, which complain that the court refused to allow the applicant, Quincy B. Waldrup, to answer on cross-examination certain questions, as to whether she thought everything that was paid by a former administrator of said estate was all right, as to what she testified in the court of ordinary as to paying a judgment in an equity case, and as to whom she offered, on the trial then in progress in the superior court, as surety on her bond, show no error under the facts of the case. Grounds 7, 8, 9, and 10, alleging that the court, in the presence of the jury, intimated or expressed an opinion as to what had or had not been proved, and ground 13 alleging that the court expressed an erroneous opinion as to what the law is with reference to the eligibility of the applicant to be appointed administratrix, are without merit. Grounds 11 and 11-A, assigning error on the refusal of the court to allow in evidence the petition and answer in an equity case, and ground 12 complaining of the refusal to allow in evidence the written selection by Kirby Cheek Maddox of J. L. Bailey Sr., to be appointed as administrator, are without merit and show no error. Grounds 14, 15, 16. 17, and 18, alleging that the court erred in charging the jury as therein complained of, show no error. The court did not err in overruling the motion for new trial.

Judgment affirmed. Stephens, P. J., concurs.