Sawyer v. Flemister

29 Ga. 347

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

Opinion

— Benning J.

By the Court.

delivering the opinion.

Was the right to sue, in the administrator of Mrs. Sawyer t If it was not, the Court below did not err in sustaining the demurrer.

If the interest which Mrs. Sawyer had in the property sued for, was no greater than an interest for her life, then, at her death, no interest remained to pass to her administrators; and therefore, no right to sue for the property, could be in him.

Whatever the interest was which she had in the property, she must have derived it, either from the will of her deceased husband, or from her own deed and its acceptance by the remaindermen.

If it was derived from the will, it could not have exceeded an interest for her life, as she remained a widow till her death, and the will gave her, in case she remained a widow, no greater estate than one during her widowhood.

If the interest in the property, was derived from the deed and its acceptance by the remaindermen, still it could not have been a greater interest, than one for her life; because the deed itself said, that the property should, at her death, be equally divided among certain persons named. This restricted her interest in the property, to an interest for her life, and gave the remainder to those persons.

Whether then her interest was an interest derived from the will, or an interest derived from the deed, it was but an interest for her life. It follows, that, at her death, there was none of it left, to pass to her administrator, and, therefore, that he had no right to sue for the property or for any interest in it. And, thence, it follows that the demurrer was good, and that the judgment holding it, good, was right.

The plaintiff seems to think, that it is his business, as Mrs. Sawyer’s administrator, to collect this money and property, for the remaindermen, or, for whoever may be entitled to the same. But they do not need his services. They can themselves assert whatever rights they have. Perhaps, they are not willing to accept his services; perhaps they would even if he succeeded in this suit, and recovered the property for them, choose to sue for it, themselves. In that case, the defendant would be in a bad condition, for the recovery in this suit, would be no bar to that suit; and so, he would have to respond a second time for the property.

Judgment affirmed.