1. Administration on an alleged unrepresented estate can not be vested in the county administrator, where the decedent left no estate to be administered.
(a) Where a husband is indebted to his wife at her death, the right of her administrator to appropriate the distributive share of such husband to the payment of his debt to the intestate is superior to the claims of his creditors to have such distributive share applied to payment of their debts.
(b) The fact that the debtor husband becomes a bankrupt after his wife's death, and thereafter receives a discharge in bankruptcy, does not preclude the administrator of the wife's estate from retaining the husband's distributive share in here estate and applying it on his debt to her estate.
2. Under the pleading and evidence of this case, the court did not err in giving the provisions of the Code, § 113-1314, in charge to the jury.
3. A refusal to give an oral request to charge is not ground for a new trial.
(a) The charge or remark complained of, while it may have been inapt, was not harmful error since it appears that the charge, taken as a whole, fully, accurately, and fairly submitted to the jury all the substantial issues in the case and the law applicable thereto.
4. The verdict is supported by the evidence, no error of law appears, and the court did not err in overruling the motion for a new trial.
DECIDED SEPTEMBER 5, 1946. REHEARING DENIED SEPTEMBER 27, 1946. This is an appeal from the judgment of the Superior Court of Jefferson County overruling the county administrator's motion for a new trial, after a verdict by a jury that no administration was necessary on the estate of Summerfield Tucker Dixon, deceased. For a statement of the pleadings and proceedings prior to the trial in the superior court, see Bethea v. Dixon, 72 Ga. App. 384 (33 S.E.2d 723), where this court held that the superior court erred in *Page 268 dismissing the applicant's appeal from the court of ordinary to the superior court. Upon the return of the case from this court to the superior court, no new pleadings were filed and the case proceeded to trial.
On the trial there was evidence that Summerfield Tucker Dixon filed a petition in bankruptcy on August 20, 1942 and that he was adjudicated a bankrupt on the same day; that the only asset disclosed by his schedules in bankruptcy was an undivided one-sixth interest in certain real estate, which was claimed as a homestead exemption on the ground that the bankrupt was an aged and infirm person; that the value of this exemption was declared to be $335; that the bankrupt died intestate on September 2, 1942 and at the first meeting of creditors in the bankruptcy court the property claimed as exempt was set aside as such; that on October 15, 1942, the W. T. Rawleigh Company filed its claim in the bankruptcy court; that the bankrupt was granted a discharge in bankruptcy on December 7, 1942; that on May 18, 1943, on petition of the W. T. Rawleigh Company, the bankruptcy case was reopened, on the ground of newly discovered assets which had not been administered in said court, and a new meeting of creditors was called, at which meeting a trustee in bankruptcy was elected; that on September 1, 1943, the referee in bankruptcy, after a hearing in said court, entered an order which provided in part that, since it appeared that the bankrupt held a life-insurance policy in a designated company with a cash surrender value of $203.73, the estate of the bankrupt, or his heirs at law, should pay this sum to the trustee in bankruptcy within 30 days or that the trustee should file a claim with the company for such sum; that no ruling was made with reference to a bank account in the name of Mrs. Mary E. Dixon, which the bankrupt was allowed to withdraw under a power of attorney from her heirs at law; that the homestead terminated with the death of the bankrupt and that the homestead property did not belong to the bankrupt's estate in the hands of his trustee, but belonged to his personal estate. The referee then refused to set aside the discharge of the bankrupt.
The attorney for the trustee in bankruptcy testified that the claim of the W. T. Rawleigh Company was compromised by the trustee paying it the sum of $236.17; that this was done on order of the bankruptcy court, after a petition had been filed seeking *Page 269 permission to settle such claim; that the amount paid the company did not pay its debt in full.
There was evidence from the heirs at law of Mrs. S. T. Dixon, who were the caveators in the court below, that, at the death of Summerfield Tucker Dixon, he was indebted to the estate of his wife in a larger sum than his interest in her estate amounted to; that she died intestate on December 8, 1941, and there was no administration on her estate until after the death of her husband, Summerfield Tucker Dixon; that the insurance policy on the life of Summerfield Tucker Dixon, which policy had been paid, was surrendered to the trustee in bankruptcy as a part of the settlement made with the W. T. Rawleigh Company.
The inventory and appraisal of the estate of Mrs. S. T. Dixon and the return filed by her administrator were placed in evidence. The return showed that the amount due her estate by Summerfield Tucker Dixon was greater than the value of his interest in her estate and that his distributive share in her estate had been appropriated by the administrator's and applied on his debt.
The jury found against administration on the estate of Summerfield Tucker Dixon, and the exception here is to the judgment overruling the county administrator's amended motion for a new trial. 1. To the petition of the county administrator seeking permanent letters of administration on the estate of Summerfield Tucker Dixon, on the grounds that he left an estate worth about $2000 and that his estate was not represented and was not likely to be represented, his heirs at law filed a caveat, one ground of which was that "All of the legal existing debts of S. T. Dixon have been paid by his heirs at law. The heirs at law prefer to settle the estate of S. T. Dixon, if any, without administration." On the trial it was contended by the caveators that the deceased left no estate to be administered. While it is provided in the Code, § 113-1301, that "There shall be appointed, in each county, by the ordinary thereof, a county administrator, whose duty it shall be to take charge of all estates unrepresented and not likely to be represented," and in § 113-1306 that, "If from any cause an estate is unrepresented, and not likely to be represented, the ordinary shall vest the administration *Page 270 thereof in the county administrator, a citation being first published for four weeks, as in other cases," these provisions of law confine the appointment to cases where estates are unrepresented and not likely to be represented. Administration upon an alleged unrepresented estate can not be vested in the county administrator, when the decedent left no estate at all.Lowery v. Powell, 109 Ga. 192 (34 S.E. 296). Also seeGuerry v. Pullen, 112 Ga. 314 (37 S.E. 391); Durden v.Wright, 143 Ga. 62 (84 S.E. 125).
"On the death of a wife intestate, leaving a separate estate in lands, without remainder or limitation over, title to such estate vests at her death in her heirs at law; and where these heirs are a husband and minor children, they take the estate share and share alike (Code, § 113-902), and the share of the husband is subject to the payment of his debts." Payton v.Monroe, 110 Ga. 262 (34 S.E. 305). Nevertheless, where the husband is indebted to his wife at her death, the right of her administrator to appropriate the distributive share of such husband to the payment of his debt to the intestate is superior to the claims of his creditors. Haley v. Partain, 31 Ga. App. 144 (120 S.E. 14). Also see, Lester v. Toole, 20 Ga. App. 381,385 (93 S.E. 55); Cox v. Brady, 58 Ga. App. 498,504 (199 S.E. 242). The fact that the debtor husband had become a bankrupt after his wife's death and subsequently died and thereafter received a discharge in bankruptcy, does not preclude the administrator of the wife's estate from retaining the husband's distributive share in her estate and applying it on his debt to her estate. Johnson v. Jones, 54 Ga. App. 456 (188 S.E. 279).
Under the facts of this case, the jury was authorized to find that the only assets claimed by the county administrator to be assets of the estate of Summerfield Tucker Dixon was his distributive share in his wife's estate, which distributive share had been appropriated by her administrator and applied on a debt due by the husband to his wife's estate, which debt was created prior to her death; and that Summerfield Tucker Dixon left no estate to be administered by the county administrator, or by any other administrator.
The verdict of the jury is supported by evidence, and the trial judge did not err in overruling the general grounds of the motion for a new trial.
2. In special ground 1, the plaintiff in error contends that the *Page 271 court erred in giving in charge the Code, § 113-1314, which provides, "Nothing in this Chapter shall be construed to authorize and require the ordinary to vest the administration in the county administrator or any other person, where the heirs, distributees, or legatees prefer to settle the estate without administration" — upon the grounds that such charge was misleading and confusing and was equivalent to the direction of a verdict against administration if the jury found that the heirs preferred to settle the estate without administration and upon the further ground that it was inapplicable to the facts involved in the case as long as there were debts outstanding by the estate. The applicant contended that administration on the estate of the decedent was necessary and proper because he left debts and an estate, while the caveators contended that administration was not necessary because the decedent left no estate to be administered and they preferred to settle the estate, if any, without administration. Under the pleading and evidence, the charge was not error for any reason assigned and the judge did not err in overruling special ground 1 of the motion for a new trial.
3. Special ground 2 of the motion for a new trial assigns error on the refusal of the court to give the following oral request to charge: "May I ask your honor to charge in connection with that provision which permits the heirs at law to settle the estate without administration to charge in connection with that that it has no application where there are debts owing by the estate, but where there are heirs, assets and debts the heirs at law can not of their own volition refuse to have an administrator appointed." It was held in Norris v. State, 184 Ga. 397 (3) (191 S.E. 375): "The court did not err in refusing the oral requests to charge. Requests to charge should be in writing (Code, § 81-1101), and there is no exception to the rule that a refusal to give an oral request to charge is not ground for a new trial." See also, Western Atlantic R. v. Swigert, 57 Ga. App. 274,277 (195 S.E. 230); Wells v. Blitch, 184 Ga. 616 (192 S.E. 209); First National Bank of Birmingham v.Carmichael, 198 Ga. 309, 312 (31 S.E.2d 811). The failure of the court to give the oral request to charge was not error.
(a) Nor did the court err, under the facts of this case, in charging the jury, "I would charge this, that any one that takes charge of an estate of the deceased is liable to any creditor for *Page 272 twice the value of the property they take over." This remark or charge was made by the court in ruling on the oral request to charge above set out, and, while the remark may have been inapt, it does not appear that it was harmful to the plaintiff in error. The charge given by the court to the jury, taken as a whole, fully, accurately, and fairly submitted to the jury all the substantial issues in the case and the law applicable thereto. No error is shown by special ground 2 of the motion.
4. The verdict is supported by the evidence, no error of law appears, and the court did not err in overruling the motion for a new trial.
Judgment affirmed. Parker, J., concurs. Felton, J., concursspecially.