In re Mussault's

1 Charlton 259

• Court: Chatham Superior Court, Ga.
• Decided: April 15, 1809
• Status: Published

Opinion

By Charlton, Judge.

It appearing from the proceedings of the court of ordinary of Camden, that, upon the petition or application of the executor of Mussault, he was removed, and the administration of the intestate’s estates conferred upon F. Petit de Villiers. It was contended by Mr. Lawson, that such an authority, upon the circumstances of this case, is not delegated by the law to the court of ordinary, for that the executor cannot, by his own act or voluntary acquiescence, divest himself of the trust devolved upon him by the testator; and, in this case, the court having ingrafted its proceedings upon an accommodation to the wishes of the executor, the whole is irregular. It must be recollected, that many actions were pending against the executor at the time when the obligations were shifted from his shoulders to those of an administrator.

I imagine that this fact was not known to the learned member of this bar, whose opinion this court always receives with respect, and under whose opinion the court of ordinary of Camden framed its proceedings. From such a weight of responsibility, it was not competent for the court of ordinary to release the executor, for, independent of the delay it would occasion, by driving the creditors to their action de novo against the administrator, when'the actions against the executor were ripe for a submission to the jury ; it would, at the same time, defeat the speedy obtainment of liens upon the.assets of the testator which the vigilance of the suing . & & creditors entitled them to. Our local system recognises but two exigencies which might lead to the removal of executors, and substitution of an administration ; the first is when executor commits a devastavit, and the second, where his insolvency renders a continuation of his trust dangerous to the rights of creditors. I say, these exigencies may lead to a removal of an executor, for he may not be able to give the security, which the law authorizes the court of ordinary to demand, when he is placed in either of these precarious situations ; and if such security is not given, his removal is the inevitable result. An executor is a trustee, or quasi a trustee, and concerning him in that capacity, a British court of chancery would shift the trust upon the application of the executor, and the concurrence of those who are interested in the discharge of the trust. Our courts of ordinary may do this, or if that is doubtful, it can be effected on the equity side of this court. It is time enough, however, to decide this principle when it is more directly before me.

Lawson, for the motion. Clarke, against it.

Upon the particular circumstances of this case, and for the reasons stated, I cannot recognise Mr. Villiers as the administrator of Mussault. That capacity must be considered as dormant, pending the suits against the executor.