Bagby Et Al v. Grogan Et Al., 91 Ga. App. 229, 85 S.E.2d 535 (1954)

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Maddox & Maddox, contra.H. G. Vandiviere, Wheeler, Robinson & Thurmond, for plaintiffs in error.

Where an intestate leaves surviving him only nephews and nieces, they inherit per capita and not per stirpes.

Sam W. Grogan filed a petition in the Court of Ordinary of Cobb County for letters of administration on the estate of William G. Grogan, deceased. Marcelle E. Grogan Bagby and W. Scott Grogan filed a caveat to the application of Sam W. Grogan. Sam W. Grogan filed general and special demurrers to the caveat. The case was appealed by consent to the superior court. There Sam W. Grogan amended his original application for letters of administration by withdrawing his name as applicant and prayed that H. Jack Grogan be appointed, and alleging that a majority of the nieces and nephews had selected H. Jack Grogan. The caveat raised the question whether a majority of those entitled to inherit had made an election and urged personal reasons why Sam W. Grogan should not be appointed. After the petition was amended the caveat was not amended; thus all questions in the caveat were eliminated except the question whether the estate should be distributed per stirpes or per capita among the nieces and nephews of the deceased. H. J. Grogan, a brother of the deceased, who predeceased him, left two children who are the caveators. M. C. Grogan, another brother of the deceased, the who predeceased him, left eight children. The deceased was unmarried and was survived by no brother or sister and by only the nephews and nieces above referred to. The court sustained the demurrers to the caveat and appointed H. Jack Grogan administrator, etc., and the caveators excepted.

The only question to be decided is whether the two children of the brother, H. J. Grogan, inherit half of the estate of William G. Grogan, and the eight children of M. C. Grogan inherit half of the estate (distribution per stirpes), or whether each niece and nephew inherits a one tenth interest (distribution per capita). Before the case of Harrell v. Storey, 175 Ga. 569 (165 S. E. 554), a full-bench decision, it seems certain that the common law and court law was that, where all of the brothers and sisters were dead, the inheritance by nieces and nephews was per capita. Houston v. Davidson, 45 Ga. 574. It was held in the Harrell case that the Houston case did not apply to the facts in the Harrell case. The same question decided in the Houston and Harrell cases was before the Supreme Court in Williams v. Trust Co. of Ga., 185 Ga. 643 (196 S. E. 74), where the court followed the common law and the Houston case as controlling. Whether the Harrell decision so devitalized the Houston case to such an extent that the three-judge decision in the Williams case could circumvent the Harrell case and apply the Houston case seems to us to be unimportant in view of the fact that the General Assembly adopted the 1933 Code almost two years after the Harrell case was decided. The codifiers of that Code added to Code 113-903 (5) the last sentence of that section and indicated the Houston case as the source of its authority. "Where a section of the Code has been codified from a decision of this court, it will be construed in the light of the source from which it came, unless the language of the section imperatively demands a different construction." Calhoun v. Little, 106 Ga. 336 (3) (32 S. E. 86, 43 L. R. A. 630, 71 Am. St. R. 254). "Another pertinent rule is that a section of the Code, not of statutory origin, is to be construed merely as a codification of existing law, unless there be words in the section which manifestly demand a construction that would change the rule in force at the time the Code was adopted." Sinclair v. Friedlander, 197 Ga. 797 (30 S. E. 2d 398). We think that, under any conceivable theory, the last sentence in Code 113-903 (5) is now the law of this State. If the Harrell case did not overrule or destroy the Houston case, the Code section codifies the law stated in the Houston case. If the Harrell case did overrule or destroy the Houston ruling, the codifiers and the General Assembly, presumably having in mind both the Houston and Harrell cases, not only stated the law to be that as ruled in the Houston case, but actually indicated by a citation of the Houston case in the very Code section itself that it was the source of the law stated and so put words in the section which manifestly demand a construction that clanged the law as stated in the

Harrell case. As tempting as it is to do so, we shall not repeat or paraphrase the reasoning and authorities in the Williams case. The Williams decision is so thorough and so sound that it does not need any additional support from us. It might be well just to call attention to the fact that the Houston case decided two questions, both of which were necessary for the decision of that case. One of them was the question raised in this case. There the court said: "if, at the death of an intestate, the brothers and sisters be all dead, their children take per capita, and not per stirpes, just as do legitimates render the same circumstances ." (Italics ours.) See Williams v. Trust Co. of Ga., supra, pages 649-650.

The act of 1931 (Ga. L. 1931, pp. 114-115) has no relevancy to the question here involved for the reason that such act dealt exclusively with amending paragraph 5 of 3931 of the Civil Code of 1910 so as to eliminate the inequalities between the inheritance of the intestate's brothers and sisters of the half blood on the maternal side and the inheritance of the intestate's brothers and sisters of the half blood on the paternal side.

The court did not err in appointing H. Jack Grogan as administrator.

Judgment affirmed. Quillian and Nichols, JJ., concur.

1954

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