Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 4091, and former Code 1933, § 113-2303, are included in the annotations for this Code section.

Administrator occupies a position of the highest trust and confidence to heirs at law, and is required to act in entire good faith in performing the duties of the trust. Harris v. Birnbaum, 82 Ga. App. 653, 62 S.E.2d 204 (1950) (decided under former Code 1933, § 113-2303).

Judgment of discharge may be impeached.

- Judgment of the court of ordinary (now probate court) discharging administrators may be impeached in that court for irregularity, or in the superior court for fraud. Morris v. Johnstone, 172 Ga. 598, 158 S.E. 308 (1931) (decided under former Civil Code 1910, § 4091).

Purchase by an administrator at the administrator's own sale is not in itself fraud. Gormley v. Askew, 177 Ga. 554, 170 S.E. 674 (1933) (decided under former Code 1933, § 113-2303).

When silence constitutes fraud.

- When persons sustain toward another a relation of trust and confidence, their silence when they ought to speak, or their failure to disclose what they ought to disclose, is as much a fraud in law as an actual affirmative false representation. Harris v. Birnbaum, 82 Ga. App. 653, 62 S.E.2d 204 (1950) (decided under former Code 1933, § 113-2303).

Cited in Phoenix Mut. Life Ins. Co. v. Daniel, 46 Ga. App. 129, 167 S.E. 117 (1932); Hampton v. Taylor, 230 Ga. 602, 198 S.E.2d 316 (1973); Hampton v. Taylor, 233 Ga. 63, 209 S.E.2d 634 (1974); Sinclair v. Sinclair, 284 Ga. 500, 670 S.E.2d 59 (2008).

Judgment of discharge may be set aside for fraud.

- While the statute seemingly refers to a motion in the court of ordinary (now probate court) which granted the discharge, the action can be sustained under the general rule that a judgment may be set aside for fraud in a court of equity; a judgment of the court of ordinary (now probate court) being no exception to this rule. White v. Roper, 176 Ga. 180, 167 S.E. 177 (1932) (decided under former Civil Code 1910, § 4091).

Provisions of this statute do not alter the cardinal rule that a judgment rendered by a court of competent jurisdiction, and regular upon the judgment's face, is to be deemed conclusive until the judgment is duly set aside, either on motion in the court in which the judgment was rendered, or in an equitable proceeding instituted in the superior court. Stanton v. Gailey, 72 Ga. App. 292, 33 S.E.2d 747 (1945) (decided under former Code 1933, § 113-2303).

While the judgment of a court of ordinary (now probate court) discharging the administrator is open to attack on the ground that the judgment was fraudulently procured, the judgment is to be deemed "void" only when, in a proceeding to set it aside, the proof shows the judgment was secured by practicing a fraud upon the heirs at law or upon the ordinary. Stanton v. Gailey, 72 Ga. App. 292, 33 S.E.2d 747 (1945) (decided under former Code 1933, § 113-2303).

Procedure to set aside fraudulently obtained discharge.

- Judgment of the court of ordinary (now probate court) discharging an administrator, which has been fraudulently obtained by falsely representing to the ordinary (now probate judge) that the applicant has fully discharged the applicant's duties as administrator, can be set aside by a proper proceeding for that purpose, instituted in the court rendering it; and this remedy is open to creditors as well as to heirs. Mullis v. Bank of Chauncey, 40 Ga. App. 582, 150 S.E. 471 (1929) (decided under former Civil Code 1910, § 4091).

Though the discharge of an executor obtained by actual fraud practiced on the heirs or the ordinary (now probate judge) may be set aside on motion and proof of the fraud, the beneficiaries sui juris under the will must institute their action to set aside the discharge within three years from the date of the order discharging the executor. Warnock v. Warnock, 206 Ga. 548, 57 S.E.2d 571 (1950) (decided under former Code 1933, § 113-2303).

Petition seeking to set aside a judgment of the court of ordinary (now probate court) discharging an executor, brought 13 years after such discharge, which did not contain specific allegations of actual fraud on the part of the executor deterring and debarring the plaintiffs from sooner instituting the action so as to toll the statute of limitations, was subject to dismissal on general demurrer. Warnock v. Warnock, 206 Ga. 548, 57 S.E.2d 571 (1950) (decided under former Code 1933, § 113-2303).

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, §§ 272, 309.

C.J.S.

- 33 C.J.S., Executors and Administrators, § 100.