Beers & Bogart v. Strohecker

21 Ga. 442

• Court: Supreme Court of Georgia
• Decided: January 15, 1857
• Docket: No. 94
• Status: Published

Opinion

By the Court.

McDonald, J.

delivering the opinion.

[1.] This bill is filed to ask the Court to protect complainant in the administration of his intestate’s estate, and praying that it may be settled under a decree of the Court, and under circumstances which will allow all creditors to present their demands and be paid according to their legal priority. That executors and administrators may resort to chancery for such object under certain circumstances, is unquestionable. Does the case made by complainant’s bill entitle him to appeal to a Court of Equity for relief? The intestate, at his death, left his affairs greatly embarrassed ; and complicated with two partnerships, one in a hotel, and the other in a Bar and Billiard room. The complainant, as administrator has been notified of debts due by his estate amounting to $11,485 66 ; of this, the sum of $7,372 93, is due by note or written obligation, and the balance $4,112 74, is due on accounts. Assets of all sorts, including receipts of Bar and Billiard room prior to the sale are $6,052 76, of which the amount of $1759 79, are mostly worthless.

Of the liabilities above stated, the sum of $6,269 46, are on account of the Bar and Billiard room, the balance was due by intestate individually.

Complainant sued Charles C. Usher, who had charge of the Bar, for the sum- of $2.500 received by him at the Bar. Usher instituted a suit in Chancery, returnable to May Term, 1854, claiming to have been a partner of the intestate in the B.ar and Billiard room, alleging that twenty-eight hundred and ninety-six dollars and fifty cents are due him as his share of the net profits. He claims his proportion of the stock on hand, &c. Since this litigation commenced, complainant was sued by the plaintiffs in error, He has entered defences to said suits and pleaded plene administravit præter, &c. &c. The bill alleges the large number of creditors of intestate, &c.

The complainant has collected and held ready to distribute for more than twelve months, the sum of $4,148 15, but owing to the suits pending in Law and Equity against him, he cannot safely pay it out. He was unapprised of Usher’s partnership with his intestate, in the Bar and Billiard room. From the nature of that business, carrying it on in his own name while Usher was secretly a partner, the debts are seemingly his individual debts, while the partnerships funds and effects are liable to pay them, and if that partnership exists, an account thereof must first be taken, its debts paid, and Usher’s interest in the profits must be adjusted with him before any part can be applied to the payment, of intestate’s individual debts. There are numerous creditors of the intestate, and five suits have been instituted against complainant as his administrator, and although the plea of plene administravit præter, ‘has been filed to these suits, it is obvious, that it will be attended with great expense, trouble, and harrassment to try the issue made by that plea in each case, as well as in cases that may be hereafter instituted. It is better for all concerned, and will prevent litigation and costs, to have all the cases tried in one suit, at a time, and under circumstances, which will enable the Court to pass fully and definitively on the rights and interests of all. The bill, presents just such a case of complication and difficulty as calls for the interference of a Court of Equity. 9. Ga. Rep. 393. 14. Ib. 326. Story Eq. Ju. §543.

[2.] So far as the argument is concerned, which is based on the objection of laches on the part of the administrator in administering the estate, we will remark that the bill is not as explicit as it ought to have been in respect to the time of the administration, but still enough appears to show that the main embarrassment in his way, is the bill filed by Charles C. Usher in 1854, claiming to be a partner in the Bar and Billiard business. This must have been without the fault of the administrator, and yet it is necessary that that matter should be determined before the administrator can, under the circumstances of his intestate’s affairs, settle with the creditors.

Judgment affirmed.