Poullain v. Brown

9 S.E. 1131, 82 Ga. 412

• Court: Supreme Court of Georgia
• Decided: September 16, 1889
• Status: Published

Opinion

Simmons, Justice.

James L. Brown, administrator de bonis non, etc. of Dawson, brought his action against Thomas N, Poullain, as surety on the administrator’s bond of Seabrook, and also brought another action against Poullain and Ann C. Davis, administratrix of her husband, as sureties on another administrator’s bond of Seabrook. Both cases, involving the same issues, were consolidated in the court below. The plaintifi recovered, and the defendants made a motion for a new trial on the several grounds set out therein, which motion was overruled ; and they excepted.

The main ground relied on "by counsel for the plaintiffs in error for reversal of the court below, was alleged error in the following charge of the court to the jury, and the exclusion of certain evidence hereinafter detailed : “ The court charges you that an administrator has, by law, no authority to ship or remove beyond the limits of this State property in his hands belonging to the estate of his testator or intestate, as the case may be, and such act, if committed, would be illegal; and if in consequence of such act the property of the estate is damaged, it would amount to a devastavit, for which the administrator and his sureties would be liable on their bond to the extent of the damage sustained by the estate. This the court charges you to be the law applicable to all administrators in the management of estates.”

It appears from the record in this case that Seabrook, the administrator, in the year 1866, undertook to ship a certain number of bales of cotton belonging to the estate of his intestate, from Albany, Georgia, to Liverpool ; that after the cotton had been placed on board the steamer at Albany, and the steamer had started down the river to Apalachicola, it ran upon a snag and sank, and the cotton was lost. Seabrook, in his returns to the court of ordinary of Dougherty county, attached to the returns an explanation, and gave his reasons for shipping the cotton to Liverpool. These reasons, in substance, were, that he thought it was for the best interest of the estate to make the shipment, because he could obtain a much better price in Liverpool than in the markets of Georgia, and that he was fearful that the cotton would be seized by the treasury agents of the general government. On the trial of the present case in the court below, Colonel Billups was offered by the defendants as a witness to prove that he had attempted about the same time to ship cotton to Liverpool, where it was worth 51 cents per pound, and that he was led to do so by reason of danger of seizure by the United States government, and the prospect of better prices ; that frequent seizures were made all through Georgia by persons claiming to be agents of the government, resulting in loss to those whose cotton was seized. This evidence was excluded by the judge, .and this ruling is also complained of. Upon this state of facts the above charge vfas given.

1. We do not think this charge was erroneous. We think it was a correct exposition of the law of this State concerning the duties and liabilities of executors and administrators. They are quasi officers of the courts of ordinary. Their duties in 'regard to the sale of the property belonging to the estates' of their decedents, are well defined. In all cases ..of sales by them, except of annual crops and wild land, the mode and the means of fixing the time and place of sale are prescribed by law. If the law is followed by them in this respect, and the sale conducted fairly, they aré not liable, whether the property brings much or little. “ Under the common law, the absolute cpntrol of the personal property of the decedent was vested in the. executor or administrator, and he had the legal power to dispose of any or all of such property at discretion. He cquld sell the personal property either at private or public sale. If he sold at private sale, he was chargeable 'with the full value of the property rather than the price obtained.” Schouler Exrs. and Adm’rs, §§339-841. Our statute has changed the common law, and requires the executor or administrator to apply to the ordinary for leave to sell (which application in the case of personal property shall be made at least ten days before the order is granted), and that advertisement be made of the day and time of sale. The intention of the law of this' State seems to be that all sales of the property of decedents shall be public, after full notice to all parties interested therein. Annual crops, however, are exempted from these rules, and executors and administrators are allowed to send them off to market. Code, §2555.'

It is insisted by counsel for the plaintiffs in error that this cotton, which was lost by the sinking of the steamer, was part of an annual crop; that under this exception to the general rule, Seabrook, the administrator, had authority to send it off' to market, and that Liverpool being a cotton • market, he had authority to send it thither; that as long as the code does not say what market, it is in the discretion of the administrator to send it to any market to which, in his opinion, it is for the best interest of the estate to send it. We cannot agree with counsel for the plaintiffs in error in this view of the iaw. We think that the market meant in this section of the code is a domestic market, a market within the jurisdiction of the courts of this State. The intention of the law is to control executors and administrators in the administration of the assets of the estate.

The law did not mean, in our opinion, by this exception to allow administrators at their discretion to send annual crops to any markets but those in the jurisdiction of the State. It could not mean to allow them, at their discretion, to send crops beyond the jurisdiction of the State. If an administrator could send to Liverpool at his discretion, there is no reason why. he should not send to Italy, Russia or China. The law requires him to make annual returns to the court of ordinary, and if he should sell annual crops, he is required, when his return is made, to submit vouchers to the ordinary, showing the quantity of cotton, the price at which it was sold, the name of the purchaser and the time of sale. Code, §2529. The sale of the annual crops being a private sale, this provision was doubtless made to compel the administrator to make a full showing in regard to such sale, in order that persons interested in the estate might for themselves examine into the sale. If the law is complied with, full data are given to all persons interested, whereby they can make this examination. By such examination they can ascertain the quantity of the cotton, the .price, the purchaser and the time when sold. This requirement is a strong circumstance going to show that the law intended the market to he a domestic one. If it were a foreign market, this section of the code could scarcely be complied with by the administrator; and it would in most eases be impossible for persons interested in the estate to have an opportunity of making the -examination which this section evidently intends to give them. They could not without great expense visit, foreign countries to make this examination. "We therefore think that the law and the public policy of the State forbid executors and administrators from removing the assets of the estate from the jurisdiction of the State. If, therefore, an executor or administrator sends the assets of the estate beyond the jurisdiction of the State, it is an illegal act? and a. devastavit per se, and no evidence of good faith or good intention should be received in order to relieve the administrator from his illegal act.

Nor would the fact that the administrator was shipping the cotton in order to prevent its being seized by the treasury agents of the government, relieve him. The presumption is that cotton seized by the agents of the 'government is legally seized; if illegally seized, the administrator would have his remedy. No court could countenance such an excuse as this; no court could hold that any person would be justified in running property away to avoid seizure by the government.

If these views are sound, of course the court did not err in refusing to give the contrary principle in charge, as complained of in the 9th ground of the'motion for a new trial; nor in ruling out -the evidence of Billups as complained of in the 12th ground, or the evidence of Yason to the same effect as complained of in the 7th ground. Nor did the court err in his ruling upon the evidence of Vason as complained of in the 8th ground. Taken in connection with the evidence already adduced on the trial, it was not such newly discovered evidence as would authorize the grant of a new trial as required by the act of 1885. (Acts 1885, p. 98.)

2. The court did not err in refusing to give in charge the request set out in the 10th ground of the motion. It appears that Seabrook, the administrator, hired laborers and-carried on the farm of Dawson in the year 1866 without the approval of the court of ordinary, and the court refused to charge that the amount lost by Seabrook for that year in carrying on the farm should be allowed him by the jury. Such contracts by the administrator can only be charged up and bind the estate when the same are made with the approval of the ordinary of the county. Of course if he had no such approval, and loss'was sustained, it would not fall upon the estate; and the court was right in refusing to give the request in charge. Code, §2546; Johnson vs. Parnell, 60 Ga. 661.

3. The next point relied on by counsel for the plaintiff in error was, that the court erred in striking the 4th plea. That plea, in substance, averred that Brown, the defendant in error, was the administrator of one Strain, as well as administrator of Dawson; that Strain was a co-surety with these plaintiffs in error; that Strain having died and Brown hawing administered on his estate, distributing the assets of that estate to the heirs and creditors of Strain, with a full knowledge of Strain’s liability as a co-surety upon the administrator’s bond of Seabrook, he being a plaintiff in the suit on his bond as administrator of Dawson, these plaintiffs in error were thereby released to the extent of the value of the assets of Strain’s estate paid out by him. We think the court did not err in striking this plea. Brown as administrator of Strain, was in law a different person from Brown as administrator of Dawson. When he distributed the assets of Strain, he did not do so in the character or capacity of administrator of Dawson, but as administrator of Strain. In making this distribution of Strain’s assets, he was not acting as administrator of Dawson; it was not any act of his as a representative of Dawson’s estate, and consequently not that of a creditor of these parties as debtors of that estate. It -was just the same in law as if A had been the administrator of Strain, and B the administrator of Dawson: A’s act in distributing the. assets of Strain could not in any way affect the sureties on Seabrook’s bond made for the benefit of Dawson’s estate, although Strain may have been a co-surety on that bond. It was no part of the duty of B to look after the protection of the sureties upon Seabrook’s bond, but that duty devolved upon themselves.

4. The evidence was sufficient to authorize the verdict of the jury.

5. Having affirmed the judgment complained of in the original bill of exceptions, the cross-bill of exceptions is dismissed.

Judgment affirmed.