Murdock vs. Hunt. of the intestate, neither was entitled to any share of his estate their parents, or grandparents, being then in life, and distributees thereof. The great-grandson was interested in the estate at the time of the application-his parents and grandparents being dead; the grandson was not, his mother, an heir at law and distributee, being alive, and being the only living distributee of the estate of the intestate. Under this state of facts, the court charged the jury to the effect that the grandson was entitled as next of kin, being nearer to the intestate than the greatgrandson, and neither being distributees of his estate at the time of his death. The Code declares the next of kin, according to relationship and distribution at the time of the death, entitled. Code §§2494-2. Thus the statute contemplates not only relatives, but relatives entitled to distribution; and neither of these is, or was ever, a distributee of this estate. The grandson is a distributee of no estate, for his mother is living, and nemo est haeres viventis; the great grandson is not a distributee of this estate, but of that of his ancestor upon whom the inheritance fell at the death of the intestate. Under the law of relationship and distribution, therefore, neither the applicant nor the caveator was entitled, for neither is, or was at the death, a distributee of this estate. We cannot say, therefore, that the court was right in charging the jury, that as matter of law the grandson was entitled, as next of kin. In such a contest, on such facts, perhaps the grant to the one or the other rested in the discretion of the ordinary, and on the appeal in that of the jury, under the instructions of the court as to nearness of blood, qualifications, interest at the time of the application for or against the estate, etc. For neither being a distributee, it would seem that neither on account of mere nearness of blood, both under our Code and the law before the Code, would be absolutely entitled to letters. See 25 Ga., 624; 29 Ib., 519; 31 Ib., 624; Williams on Executors v. 1, pp. 485, 491, 492. Murdock vs. Hunt. 2, 3. Who then is entitled? Under the facts this record discloses, the mother of the caveator is clearly entitled, for she is the only living person at the date of the application who was next of kin according to the law of relationship and distribution when the intestate died. And being so entitled, the record shows that she designated her son, the caveator, to take the administration. Therefore, whether the charge be right or wrong, no harm was done by it; because the fact that the only person entitled clearly to letters designated the person to whom the jury by their verdict granted them. A point was made by the counsel for plaintiff in error, who argued his cause with much learning and zeal, that this designation should have been in writing under section 2494, sub-section 4 of the Code; but that sub section applies to cases where there are several who are next of kin. In such cases there are obviously good reasons why the choice of one of them should be in writing, to avoid all dispute among many equally entitled and standing in the same degree; but here but one was so entitled, and she chose her son to act. It seems to us to come rather under the spirit of sub-sections 6, 7 and 10, of §2494; and a designation in writing not to be essential. 63 Ga., 458. But be that as it may, the testimony before the jury that she did designate the caveator was not objected to; it went before them as evidence and makes the verdict stand as required by the evidence. Besides, should the case be remanded for a new trial, she would then designate her son to act, and if necessary make the selection known in writing. Therefore, while we doubt that the charge of the court is precisely the law, in that it seems to ignore the law of distribution in this case, because neither contestant was a distributee, yet as the grandson is more nearly related to the intestate than the great-grandson, we will not send the case back on this doubt; but affirm the judgment denying the new trial mainly on the ground that the person Venable vs. Howard, ordinary, for use. entitled to administration selected the defendant in error, and thus made him entitled to stand in her shoes and administer her father's unadministered estate. We do not think that his being a creditor, even if he is, should defeat the grant. Under our law, when there are no next of kin, it may entitle him (sub-section 5 of section 2494); and if neither be next of kin, the applicant nor himself under the law of distribution, the fact that he is a creditor would add to his claim. On the whole the verdict ought to stand. Judgment affirmed. VENABLE US. HOWARD, ordinary, for use. 1. There was evidence in this case on which to found the charge as given by the court. 2. After January 1, 1863, a guardian had no right to invest the Confederate money of his ward in his hands, except for state securities, without an order of the superior court. If he did so, he became liable for the value of such money at the time it was so invested. Charge of Court. Guardian and Ward. Confederate Money. Before Judge ERWIN. Jackson Superior Court. February Term, 1881. Reported in the decision. W. L. MARLER; J. B. ESTES & SON, for plaintiff in error. W. I. PIKE, for defendant. SPEER, Justice. The defendant in error brought his action on a guardian's bond, given by John Venable, as principal, and William M. Duke and H. C. Appleby, as securities, to Venable vs. Howard, ordinary, for use. recover an amount claimed to be due by the guardian to his ward, Terrell Wood. On a former trial, a verdict was returned for the defendants, but on a motion for new trial and to set aside the verdict, the court granted a new trial, as against Venable, the principal in the bond, but refused it as to the securities, holding that they had been discharged by the act of Terrell Wood, the usee. The present trial, therefore, presented an issue between the usee of the bond, and the principal, Venable, alone. On the trial a verdict was, under the evidence and charge of the court, returned in favor of the plaintiff, a motion for a new trial was made on the grounds as set forth in the record, which was refused by the court, and defendant excepted. The grounds of the motion for a new trial, were: (1.) Because the verdict is contrary to the evidence and to the weight of evidence. (2.) Because the verdict is contrary to law. (3.) Because the court erred in charging the jury, "that the defendant had no legal right to loan out the Confederate money, or invest the same after the first day of January, 1863 (except for state securities), without an order from the superior court, and if the defendant, without an order from the judge of the superior court, invested the Confederate money in the currency known as seven-thirties, then the defendant is liable for the value of such Confederate money at the time he so invested it." Counsel for plaintiff in error, in his argument before this court, relied mainly for a reversal upon the last ground in the motion, alleging as error that there was no suffi cient evidence before the jury of an investment by plaintiff in error, upon which to rest this charge, but that the plaintiff in error merely exchanged one species of Confederate currency for another, which, though known as seventhirties, was in the similitude of Confederate currency, and passed as such, and that said currency having perished on his hands, plaintiff in error was not liable to respond for the value thereof. Whatever may have been the testi Isaacs vs. Davies. mony of the plaintiff in error on this point (and he was the only witness), when he answered the interrogatories propounded to him, it is equally true that when he made his returns to the ordinary, touching this fund, he did return it as "invested" in the Confederate seven-thirties, and this return was verified by his oath; and his version of it when thus made, and when the matter was fresh in his mind, the jury could believe in preference to his present recollection. We think there was sufficient evidence for this charge, under the facts before the jury, and the rule of law, as given in charge, is one that has been repeatedly recognized by this court. See Code, §§1833, 2330; 54 Ga., 291; 52 Ib., 600; 48 Ib., 471. Let the judgment of the court below be affirmed. ISAACS vs. DAVIES. If a servant be employed for five months at a specified rate per month, payable monthly, and pending the employment he be wrongfully discharged, he may, in his option, sue at the end of each month, and a recovery for one month will be no bar to a suit at the end of the next month. Master and Servant Actions. Former Recovery. Before Judge PATE. Pulaski Superior Court. November Adjourned Term, 1880. Reported in the decision. L. C. RYAN, by brief, for plaintiff in error. KIBBEE & MARTIN, for defendant. CRAWFORD, Justice. It appears by the record in this case that Isaacs, the plaintiff in error, employed Davies, the defendant in error, to clerk for him for five months, at $35.00 a month, pay. 68 169 f111 373 |