Irwin v. Sterling

27 Ga. 563

• Court: Supreme Court of Georgia
• Decided: March 15, 1859
• Status: Published

Opinion

By the Court.

McDonald J.

delivering the opinion.

It is under the Judiciary Act, that suits are authorized to proceed against the representatives of a deceased party, and the statute has reference to rightful executors or administrators, and does not embrace executors, de son tort. By statute, executors or administrators are exempt from suit for twelve months from the prohate of the will of the testator. In regard to cases pending, “ when the defendant shall die, it shall and may be lawful for the plaintiff to issue a scire facias f “ immediately after the expiration of twelve months, requiring the executor or administrator to appear and answer to the cause.” Twelve months are allowed to a rightful executor to marshal the entire assets of his testator’s estate. This is for the benefit of the estate. No such privilege is granted to an executor, de son tort; for his interference with the assets is a wrong for which he is immediately liable in an original suit, to the extent of his intermeddling. It is by the statute alone that a suit pending against a defendant at the time of his death, can be continued against his personal representative, and the Act contemplating its continuance against rightful executors or administrators only, an executor, de son tort, cannot be made a party

Judgment affirmed.