Bates v. Woolfolk

5 Ga. 329

• Court: Supreme Court of Georgia
• Decided: July 15, 1848
• Docket: No. 35
• Status: Published

Opinion

By the Court.

Warmer, J.

delivering the opinion.

This- was- an- action of trover, brought by the plaintiff as the administrator cfe bonis non with- fcbe will-annexed, of Andrew Mc-Neely, deceased, against! tthe-defendanti, to recover a negro named5 Chloe, and ber oM-ldiren. From- the facts, as they appear on the- fbce* of'this- record, the plaintiff was clearly not entitled to recover tlie negroes, in- the- character in which* lie- sued*.

[•!.] The negro, Chl’oe, was bequeathed to the wife of the testator, during her residence on a- particular plantation*, and- no other disposition* made- of her by th© will1 whatever. It appears that some* of the* executors to- the will qualified, and distributed the negro*, Chloe, to the* legatee, Mrs-. McNeely; as Mrs. Turner, one of the witnesses, states, Mrs. McNeely had the property in- her possession, wider the -wild of Andrew McNeely, the grand-father of the witness. When Chloe- was distributed to Mrs-. Esther McNeely, the legatee under the- will, by tlie executors) the will- was executed-,, so- Jar as the disposition* of that part of the- testator’s* property was-concerned; in other-words, that portion' of the testator’s- estate* wasfulily. administered, according toi the directions of his* will. The* plaintiff? sues as the administrator da bonis non, with the will annexed. The office and duty of am administrator d'e bonis non,, with, the will annexed;. is> Co administer suchi portion of the testator’s- estate, as has not been administered under the directions of bis will, or as we said in Thomas vs. Hardwick, “ be is appointed to finish a business already begun, and in most* cases partially performed, “Sofar as-the negro Chloe is concerned, she has been fully administered, in accordance with the wil-l* of the testator; and: the plaintiff has no right to recover possession of her, for the-purpose of making any further adminisiratiomundar the wilVofthe testator.. What rights a general administrator on* tlie estate of Andrew McNeely might have in. regard1 to-the property; we express no-opinion.

This view of the’case being fatal to-tlie plaintiff’s-right to recover, in the character in which lie has brought bis suit, it is not necessary to consider the Statute of limitations. Let the judgment of the Court below stand affirmed.