Allen v. Allen

87 S.E. 891, 144 Ga. 687, 1916 Ga. LEXIS 78

• Court: Supreme Court of Georgia
• Decided: February 18, 1916
• Status: Published

Opinion

Per Curiam.

1. By the Civil Code (1910), § 3886, it is declared that if any person, without authority of law, wrongfully meddles with, or converts to his own use, the personalty of a deceased individual, whose estate has no legal representative, he shall be held and deemed an executor in his own wrong, and as such shall be liable to the creditors and heirs, or legatees of such estate, for double the value of “the property so possessed or converted by him.” The double liability imposed is in the nature of a penalty for meddling with or converting the personalty of a deceased person after his death and when there is no administra-, tion. It does not apply if property of a person is converted during his lifetime. Davis v. Davis, 56 Ga. 37.

2. If one wrongfully takes possession of personalty of a deceased person whose estate is unrepresented, and renders himself liable as an executor in his own wrong, but is then appointed administrator and duly qualifies as such, he can not, in a suit thereafter brought, be held liable as an executor in his own wrong on account of such prior conduct; but he becomes liable for the proper administration of the estate as a lawful administrator. Carnochan v. Abrahams, T. U. P. Charlton, 196, 210; 18 Cyc. 1362; Nance v. Gray, 143 Ala. 234 (38 So. 916, 5 Ann. Cas. 55).

3. One of two administrators brought suit against several persons, including his coadministrator as an individual, seeking to make them liable as executors de son tort. The plaintiff alleged that he joined his coadministrator with Mm as a plaintiff “in his official capacity only.” Held, that, if such a suit could be brought at all by one administrator against his coadministrator individually and others, joining such- co-administrator in his representative capacity as a eoplaintiff, the evidence failed to show a case warranting a recovery, and there was no error in granting a nonsuit.

February 18, 1916.

Complaint. Before Judge' Patterson. Forsytli superior court. August 24, 1914.

0. L. Harris and J. P. Brooke, for plaintiff. 1. L. Oakes and Louis B. Wisdom, for defendants.

Judgment affirmed.

All the Justices concur.