McGonagle v. Duncan
McGonagle v. Duncan
Opinion of the Court
W. L. Cook died testate, leaving his wife, Manasseh Cook, a fee simple interest in one-half of his real and
Manasseh Cook died testate, leaving a part of W. L. Cook’s estate unadministered and unrepresented. Charles C. Duncan, executive director of the Georgia Baptist Foundation, petitioned the probate court to grant letters of administration de bonis non with will annexed to him, alleging an interest in the estate of W. L. Cook. Upon the hearing of the petition, after the issuance and publication of citation, the probate court appointed Duncan as administrator d.b.n. Sixteen months later plaintiff, one of the beneficiaries under Manasseh Cook’s will, brought a complaint in equity against Duncan, administrator d.b.n., to set aside the judgment of the probate court appointing him administrator. The two wills and the record of proceedings in the probate court were attached to the complaint as exhibits. From the dismissal of her complaint, plaintiff appeals.
In her complaint, plaintiff alleged that although defendant Duncan was an agent and employee of the Georgia Baptist Foundation, he was neither kin nor creditor of W. L. Cook and had no interest in his estate as he had alleged in his petition for appointment, that he was a knowledgeable man who worked with wills and estates and knew that he had no interest in the estate of W. L. Cook, and that in alleging an interest in the estate of W. L. Cook he allegedly perpetrated a fraud upon the probate court. We do not find that any fraud has been perpetrated on the court and therefore we affirm the judgment below.
The petition for appointment filed in the probate court begins: "The petition of Charles C. Duncan, Executive Director of the Georgia Baptist Foundation, of Atlanta, Georgia, respectfully shows . . .” It was signed and verified by Charles C. Duncan, Executive Director, the Georgia Baptist Foundation. In it "Petitioner alleges that he is interested in the estate of W. L. Cook, deceased. . .”
Plaintiff also argues that the Georgia Baptist Foundation cannot serve as trustee under the will of W. L. Cook, citing Code Ann. § 41A-1103 (a) (Ga. L. 1974, pp. 705, 784), and thus it has no interest in the estate. Code Ann. § 41A-1103 (a) provides that only trust companies, certain national banks, and certain corporations marketing securities for religious, philanthropic or charitable organizations, can act as fiduciaries. However, subsection (b) of that Code section provides that it shall not repeal or change two specified Code chapters dealing with foreign trustees and foreign corporations acting as fiduciaries or "any other statute or rules of law on such subjects.” Code Ann. § 22-5503 (Ga. L. 1968, pp. 565, 822), which was not expressly repealed by the 1974 Financial Institutions Code (Code Title 41 A, supra), provides that incorporated nonprofit religious societies "are authorized to act in their corporate capacity as trustee to administer and carry into effect any charitable trust heretofore or hereafter created by deed or by will, which is consistent with the objects of the corporate existence.” Repeals by implication are not favored and we find that it was not the intent of the General Assembly in enacting Code Ann. § 41A-1103 to repeal Code Ann. § 22-5503. Thus, the Georgia Baptist Foundation does have an interest in the estate of W. L. Cook, as trustee.
We therefore hold that as representative of the Georgia Baptist Foundation, defendant Duncan was authorized under Code Ann. § 113-1210.1 to petition for the appointment of an administrator, Towner v. Griffin, supra, and that the Georgia Baptist Foundation had such an interest in the estate as trustee, Code Ann. § 22-5503, so as to authorize the appointment of its representative as administrator under Code Ann. § 113-1202 (2) (6).
The case of Phillips v. Gladney, 234 Ga. 399 (216 SE2d 297) (1975), is not applicable here; in that case the person appointed administrator was not entitled to the appointment. In view of this disposition of the case, we do not reach the venue question.
Judgment affirmed.
Reference
- Full Case Name
- McGONAGLE v. DUNCAN
- Status
- Published