Mattox v. Embry , 131 Ga. 283 ( 1908 )

Atkinson, J.

1. The Civil Code, §4466, provides: "In all cases in the court of ordinary, the party desiring to appeal, his attorney at law or in fact, shall pay all costs that may have accrued, and give bond and security to the ordinary for such further costs as may accrue by. reason of such appeal; this being done, the appeal shall be entered.” This section was construed in Sims v. Walton, 111 Ga. 866 (36 S. E. 966), to mean that the bond shall not be made payable to the ordinary, but to the appellee. Under this ruling, the appeal bond given by the appellant was correct without amendment. It appears that the appellant amended the bond under pain of having the appeal dismissed, and the bond was thereby so changed as to make it payable to the wrong person. In its amended condition the bond did not comply with the law as ruled in Sims v. Walton, supra; but, inasmuch as the appeal bond was payable to the proper person in the first instance, direction will be given under the authority vested in this court by the Civil Code, §5586, that, upon the return of the case, the appellant shall be allowed further to amend by striking the amendment to the bond so as to allow the bond to stand as originally filed.

2. It was contended by counsel for J. W. Mattox that Embry was not shown by the record to have been selected by a majority of the next of kin to deceased, because Myrt. Mattox was a minor and neither she nor her guardian was authorized by law to express a choice in the selection; and S. J. Mattox had lost his right to the expression of a choice by conveying his interest in the property as security for a debt which was overdue and unpaid; and because the seven children of Mrs. Webb, a deceased daughter of the intestate, were each entitled to a voice, and they, as well as the holder of the security deed from S. J. Mattox, had in writing selected J. W. Mattox; and when these were considered J. W. Mattox was the choice of a majority. These contentions ■ are untenable. It appeared that six of the children of the deceased, constituting a majority of ten, had in writing requested the appointment of J. W. Embry. One of the six children was a minor, but, inasmuch as the guardian of the minor joined her in making the written request, the fact of her minority did not affect the ease. Myers v. Cann, 95 Ga. 383 (22 S. E. 611). Another of the six had also conveyed his interest in the land as security for a debt which was overdue and unpaid, but that did not .amount to a surrender of his right to express a choice in selecting the administrator. He continued to be one of the class, “next of kin equally near in degree to deceased,” and had an equitable interest in the property left, to wit, the right to redeem; and it was that relationship which; under the Civil Code, §3367, par. 3, gave him a right to 'a voice in the selection of an administrator. Having been selected in writing by- a majority of the next of kin, under the construction given to paragraphs 3 and 6 of Civil Code, §3367, in the ease of Holliday v. DuBose, 59 Ga. 268, J. W. Embry was entitled as a matter of law to appointment. Neither of the contestants was one of the next of kin of the intestate. One of them was selected by a majority of the next of kin according to the statute of relationship and distribution; the other was recommended by certain persons claiming a minority interest in the estate, and he himself claimed a fractional interest by- conveyance.

It appeared that the daughter of deceased, who married G-. A. Webb, had died and left surviving her seven children. It was contended that each of them was entitled to a vote as next of kin in the selection of an administrator, and that, if they were to be contemplated, the six next of kin who had selected Embry did not amount to a majority of all of the next of kin. We do not think there is any merit in this contention. The Webb children, under the statute of distribution, were not in fact related to the deceased equally near in degree with the other persons who selected Embry. The interest in the estate which they acquired was by inheritance from their mother. She was entitled only to one vote, and at most the Webb children as a class could not have a greater voting power than their mother would have had if she had survived.

Judgment affirmed.

All the Justices concur, except Holden, J disqualified.