Executors, administrators, and other trustees, when defending an action as such or defending solely the title of the estate, may enter an appeal without paying costs and giving bond and security as required by Code Section 5-3-22; but, if a judgment should be obtained against such executor, administrator, or other trustee and not the assets of the estate, he must pay costs and give security as in other cases.
(Laws 1799, Cobb's 1851 Digest, p. 495; Code 1863, § 3542; Code 1868, § 3565; Code 1873, § 3622; Code 1882, § 3622; Civil Code 1895, § 4464; Civil Code 1910, § 5009; Code 1933, § 6-113.)
Editor's notes.- The operation of this Code section is confined to appeals from courts other than the probate courts. See Hobbs v. Cody, 45 Ga. 478 (1872); Goodwyn v. Veal, 50 Ga. App. 657, 179 S.E. 126 (1935), and Wever v. Wever, 183 Ga. 453, 188 S.E. 706 (1936).
JUDICIAL DECISIONS
Suit against person as administrator gives the administrator the right to appeal without giving security. Irving v. Melton, 27 Ga. 330 (1859).
One sued in capacity of administrator need not give security as a prerequisite to appeal provided judgment is to affect only assets of decedent. McCay v. Devers, 9 Ga. 184 (1850).
When judgment rendered binds administrator personally, an appeal cannot be entered under provisions of this section. Bryson v. Scott, 111 Ga. 196, 36 S.E. 619 (1900); Webb v. Webb, 24 Ga. App. 464, 101 S.E. 200 (1919).
Administrator appealing from citation for settlement must pay costs.
- In citation of administrator or other trustee for settlement in court of ordinary (now probate court), a personal judgment is intended, and when such judgment is rendered, against administrator or other trustee, in order to appeal the administrator must either pay costs or make a pauper affidavit required by law; the administrator cannot appeal as administrator or other trustee without paying costs under this section. Bruce v. Dunn, 52 Ga. App. 758, 184 S.E. 361 (1936).
Section inapplicable to citation proceedings by distributee against administrator. Hickman v. Hickman, 74 Ga. 401 (1884); Webb v. Webb, 24 Ga. App. 464, 101 S.E. 200 (1919).
Section inapplicable to annual ex parte return of administrator. Adams v. Beall, 60 Ga. 325 (1878).
Administrator, whose surety has become insolvent pending appeal, need not furnish additional security. Latimer Whiting & Co. v. Administrators of Ware, 2 Ga. 272 (1847).
When judgment amended to charge defendant individually.
- When judgment de bonis testatoris was rendered by justice, and defendant, on same day, entered appeal without giving security, and subsequently judgment was amended by justice, so as to charge the defendant individually, appeal should not be dismissed because entered without appellant's giving bond and security. Cannon v. Sheffield, 59 Ga. 103 (1877).
Defective pauper affidavit filed in appeal by trustee.
- Appeal by trustee from judgment against estate shall not be dismissed because the defective pauper affidavit was filed. Sawyer v. Cheney, 59 Ga. 368 (1877).
Clerk's failure to exact costs does not affect appeal.
- If clerk receives appeal from administrator without exacting costs, appeal is good; for clerk, as to all concerned, except appellant, is estopped from saying that the appellant has not received costs. Crawford v. Cate, 20 Ga. 69 (1856).
Cited in Ford v. Redfearn, 145 Ga. 498, 89 S.E. 611 (1916); Goodwyn v. Veal, 50 Ga. App. 657, 179 S.E. 126 (1935); Wever v. Wever, 183 Ga. 453, 188 S.E. 706 (1936).
RESEARCH REFERENCES
Am. Jur. 2d.
- 5 Am. Jur. 2d, Appellate Review, § 849 et seq.
C.J.S.- 4 C.J.S., Appeal and Error, § 531 et seq.
ALR.
- Right of executor or administrator to contest, or appeal from, court's rejection of claim against decedent's estate, 129 A.L.R. 922.