Lawson v. Powell

31 Ga. 681

Opinion

By the Court. —

Lumpkin, J.,

delivering the opinion.

Was the Court right in rejecting the testimony of Wilson O. Davis, who was examined by commission to' prove the admissions and promises of Green B. Powell, executor of Zilpha Tomlin, deceased, of the indebtedness of his testator to the plaintiff ?

In Sample, Adm'r, vs. Lipscomb, Adm'r, 18 Ga. Rep. 687, it was held by this Court, that administrators or executors, plaintiffs in an action, were bound by their acknowledgments in relation to the subject-matter of the suit, and that if .the estate they represented was injured by these admissions, they were answerable therefor; but that third persons must be protected in acting upon them. True, the suit in that case was instituted by the administrator; but, in principle, it can make no difference whether the acknowledgments were made by the plaintiff or defendant. In Fennel vs. Gray, 21 Pickerering, 243, the Court say and decide, that the declarations of an executor or administrator are admissible against him, in any suit by or against him in that character. See also 16 Johns, 277; 4 Cowen, 49; 5 Wend. 558.

It is now received as undisputed law, that declarations, admissions and promises of a trustee, after he is clothed with his fiduciary character, will take a case out of the statute of limitations; and that such acknowledgments are sufficient to establish the original demand against the estate. 1 Greenleaf on Ev. §176, and the cases there cited in the notes. 10th edition.

JUDGMENT.

Whereupon, it is adjudged by the Court, that the judgment of the Court below be reversed upon this ground: We think the Court erred in rejecting the depositions of Wilson O. Davis, as to the admissions and promises of Powell, as executor of Tomlin, and consequently adjudge, that the nonsuit be set aside and the case reinstated.