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Lawskills.com Georgia Caselaw
ESCARENO v. CARL NOLTE SOHNE GMBH.
S98Q1334.
FLETCHER, Presiding Justice.
Certified question from the United States Court of Appeals for the Eleventh Circuit.
The Eleventh Circuit Court of Appeals certified to this Court the question of whether the appointment of an administrator for Alejandro Escareno's estate was proper based upon a pending cause of action in Fulton County against Carl Nolte Sohne GmbH, a foreign defendant, or upon the presence of the case file in the decedent's counsel's office in Fulton County. Because we conclude that OCGA 15-9-31 (2) authorizes the appointment of an administrator for an estate in the county where the decedent had a pending lawsuit, we answer the question in the affirmative.
In 1990, while working in Georgia, Escareno suffered third-degree burns over much of his body when a crucible allegedly manufactured by Carl Nolte Sohne burst, showering Escareno with molten zinc. Escareno filed a diversity suit against Carl Nolte Sohne, a German company, and others in the federal district court for the Northern District of Georgia in January 1992. Escareno died in December 1992, while he was a resident of Mexico. He left no property in Georgia other than his interest in the lawsuit and the file in his lawyer's possession. His lawyer was appointed temporary administrator of the estate and sought to substitute himself as party plaintiff. The district Court denied the substitution and dismissed the case; the Eleventh Circuit reversed and remanded. On remand, counsel, with the consent of Escareno's heir, petitioned the Fulton County Probate Court for the appointment of Philip Grant as administrator of the estate, which was granted. Grant then sought substitution as plaintiff. The district court again dismissed the suit, holding that the probate court in Fulton County lacked jurisdiction under OCGA 15-9-31 to appoint an administrator because Escareno, a resident of Mexico, did not have property in Fulton County or a cause of action against a Fulton County resident.
OCGA 15-9-32 and OCGA 15-9-31 (2) address the jurisdiction of a probate court over the estate of a nonresident. OCGA 15-9-32 provides that,
[w]hen a nonresident decedent has property or a cause of action in more than one county, letters of administration may be granted in any county in which such property or cause of action is located.
Similarly, OCGA 53-6-21 provides that application for letters of administration of a nonresident's estate shall be made in a county where some portion of the estate is located. These provisions evidence an intent for the situs of the estate to follow the location of the cause of action. Reading these provisions with OCGA 15-9-31 (2), which provides that a probate court can grant administration on the estate of a nonresident person "with a bona fide cause of action against some person therein," demonstrates that the pendency of a nonresident decedent's lawsuit in a county is a sufficient basis for the administration of the estate in that county.
This construction is consistent with the long-standing rule that the administration of a nonresident's estate does not require that the nonresident have owned tangible property in this state. 1 Rather, the presence of a cause of action for death or injury to the decedent is a sufficient basis. 2 This construction is also consistent with prior case law giving a broad interpretation to provisions for the administration of a nonresident's estate. 3 To hold, as Carl Nolte Sohne argues, that a cause of action is sufficient only if it is against a resident of the county in which it is brought construes Georgia law too narrowly. Such a construction could result in the termination of a pending lawsuit upon the nonresident plaintiff's death, even if the defendant's negligence caused the death.
Therefore, we conclude that the appointment of an administrator for Escareno's estate in Fulton County where the lawsuit was pending was proper.
Morgan, Lewis & Bockius, Thomas B. Kenworthy, David W. Cromley, Hawkins & Parnell, Julia B. Jagger, for appellee.
Notes
1  Robbins v. National Bank of Ga., 241 Ga. 538, 542 (246 SE2d 660) (1978).
2  Durden v. Wright, 143 Ga. 62, 62 (54 SE 125) (1915).
3  See Neal v. Boykin, 132 Ga. 400 (64 SE 480) (1909) (nonresident decedent's personal property carried into county after his death sufficient for appointment of administrator in that county); McLaren v. Bradford, 52 Ga. 648 (1874) (deceased trustee who had been resident of Muscogee County and who had in life presumably had possession of bonds owned by
Gambrell & Stolz, Irwin W. Stolz, Seaton D. Purdom, for appellant.
DECIDED NOVEMBER 23, 1998.
Thursday May 21 03:27 EDT


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