SWYMER v. SWYMER

G. F. Swymer, hereinafter called the plaintiff, as administrator of the estate of T. G. Swymer, made application to the Court of Ordinary of Brooks County seeking discharge from his trust alleging that he had completed the administration of his father's estate. T. S. Swymer, hereinafter called the caveator, a brother of the administrator, filed a caveat to the petition for discharge, alleging substantially: (1) That in the month of May, 1953, the caveator offered to pay the administrator $10,000 for the 300 acres of land that the father had owned in Brooks County, Georgia, at the time of his death; that the administrator refused to sell the property to the caveator on the grounds and for the reason that the administrator intended to get title to the land of the father in the name of G. F. Swymer at a figure less than $10,000 offered by the caveator and thereby take away from the caveator and the other heirs a valuable interest to which the caveator and each of the other heirs was entitled; (2) that at all times prior to May, 1953, the administrator stated to the caveator that he would not have the property; that the caveator relied upon the representations made by the administrator "that he would not have the land"; that the administrator made that statement to the caveator for the purpose of misleading him; that the administrator knew that he was misleading the caveator; that the caveator acted upon the statement of the administrator that he would not have the land and the caveator was led to believe by such statement of the administrator that the land was worth more than $10,000 and that the administrator would get more than that for it by offering it for sale under circumstances to demand the best price; (3) "that on the 8th day of September 1953, without any knowledge on the part of the caveator as to what his brother intended to do, the administrator filed in the Court of Ordinary of Brooks County, Georgia, his application for leave to sell the land, and an order was granted for the sale of the same and at the sale by the administrator he made the only bid of six thousand ($6,000) dollars when in fact and in truth he knew that he had a bid of ten thousand ($10,000) dollars from his brother filing these objections and the property was not exposed for sale under circumstances to command the highest and best price, and by reason of the fraud aforesaid practiced upon caveator the administrator knocked the land off to himself and executed a deed to himself on the 3rd day of November 1953, and caveator objects to the discharge of the administrator from his trust and says that he has not faithfully and honestly discharged this trust and confidence reposed in him and that G. F. Swymer is not entitled to the land in question"; (4) that the caveator tendered back to the administrator the amounts paid out by the administrator, including the last check in the amount of $233.51 signed by G. F. Swymer, administrator.

The case came on for hearing before the Court of Ordinary of Brooks County, which resulted in a judgment in favor of the administrator. The caveator appealed to the Superior Court of Brooks County where the case became de novo. The administrator in the superior court filed a demurrer to paragraph 1 of the caveat and moved to strike the same because said paragraph set up, as grounds for caveat, an offer of T. S. Swymer to buy the land from the administrator of the estate at prior sale when the law requires that sales of lands by administrators shall be at public outcry. The Judge of the Superior Court of Brooks County sustained the demurrer filed by the administrator and dismissed the caveat on motion. The caveator assigns error on this judgment.

GARDNER, P. J.

The question to be determined is whether or not the court correctly sustained the special demurrer and thereafter dismissed the caveat. It is elementary that a public sale contemplates that the public shall be given the opportunity to engage in competition by competitive bids. It will be noted that under the facts of this case the administrator made application to the Court of Ordinary of Brooks County, (the county in which the land was located) for an order to sell the land in question. He duly obtained such order. Therefore, the land was put up for sale in the regular manner, so far as this record shows. At the sale the land was "knocked off" to the administrator for $6,000. According to the record the caveator did not mention his alleged offer of $10,000 from May, 1953, until after the sale at public outcry the following November. There is nothing in the record to show why the caveator did not follow up the sale of the land as it was his duty and right to do if he wanted to see that the land brought $10,000. It is true that the caveat contained an allegation that the administrator did not sell the land under such circumstances to make it bring the best price and that the administrator purposely sold the land under such circumstances to militate against the land bringing the best price, but there is nothing in the record to support this contention. Many things may happen from May until the following November. There appears to be no reason why the caveator as an heir at law did not follow up the situation and do something towards making the land bring what the caveator contends it was worth. It is well settled that an administrator, who is also an heir at law, may purchase at his own sale, provided the transaction is not infected with fraud. In Gormley v. Askew, 177 Ga. 554 ( 170 S.E. 674) the court said: "The purchase by an administrator at his own sale who is interested in the property as an heir at law, is not fraud in itself."

The trial court did not err in the judgment dismissing the caveat and entering final judgment discharging the administrator.

Judgment affirmed. Townsend and Carlisle, JJ., concur.