Wicker v. Howard

Supreme Court of Georgia

Wicker v. Howard

54 S.E. 821, 126 Ga. 119, 1906 Ga. LEXIS 345

CourtSupreme Court of Georgia

DecidedJuly 30, 1906

StatusPublished

Cited by6 cases

This text of 54 S.E. 821 (Wicker v. Howard) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wicker v. Howard, 54 S.E. 821, 126 Ga. 119, 1906 Ga. LEXIS 345 (Ga. 1906).

Pincite

Opinion

Evans, J.

The facts of this ease bring it squarely within the ruling announced in Summerlin v. Floyd, 124 Ga. 980, wherein this court held that although an administrator who had misappropriated assets coming into his hands may have obtained his discharge by means of fraud practiced upon the ordinary and the heirs at law, “yet the judgment discharging him can not be set aside at the instance of adult heirs, unless they attack it by a proceeding commenced within three years from the date of its rendition.” His discharge, until regularly set aside, will preclude the heirs from calling on him to account for profits. which he made by secretly becoming the purchaser, through an agent, of property sold by him as administrator at public outcry, and afterwards resold by him at private sale for his individual benefit and advantage.

Judgment affirmed.

All the Justices concur, except Fish, G. J., absent. B. B. Baxter and William II. Fleming, for plaintiffs.

Purchase by administrator at his own sale, voidable, etc.: Ga. R. 12/591; 30/780; 39/381, 672; 46/290, 361; 69/372, 385, 518, 605; 106/-813; 107/449, 780; 116/28; 22/637; 33/163; 78/181; 99/730; 99 Am. Dec. 464; 6 Am. St. R. 262; Schoul. Ex. §358; 11 Am. & Eng. Enc. L. 1150, 1153. Duty as to administrator’s return: Civil Code, § 3462. Effect of judgment of discharge, and collateral attack thereof; Civil Code, §3510; Ga. R. 18/346; 98/791; 108/430. Lapse of time not counted until discovery of real facts of fraud: Civil Code, §§3785, 3772, 3510; Ga. R. 23/249; 59/338; 90/550; 94/490; 87/267; Schoul. Ex. §§ 358, 393; 19 Am. & Eng. Enc. L. 242; 130 U. S. 324; 21 Wall. 348.

Henry O. Boney, Q. Henry Cohen, and Boclney S. Cohen, for defendants,

cited Civil Code, §§ 3510, 3933, 3934, 3987, 5370; Ga. R. 56/101, 684; 101/594; 104/272; 18/346; 119/887; 121/547; 108-/439; 68/484; 12/68; 120/929; 117/471; 81/611; 98/487; 124/-980; 19 Am. & Eng. Enc. L. 242, 251; Bisp. Eq. (6th ed.) 383; 60 Miss. 839; 28 Fed. R. 280; 13 Ib. 152.

Free access — add to your briefcase to read the full text and ask questions with AI

Evans, J.

The facts of this ease bring it squarely within the ruling announced in Summerlin v. Floyd, 124 Ga. 980, wherein this court held that although an administrator who had misappropriated assets coming into his hands may have obtained his discharge by means of fraud practiced upon the ordinary and the heirs at law, “yet the judgment discharging him can not be set aside at the instance of adult heirs, unless they attack it by a proceeding commenced within three years from the date of its rendition.” His discharge, until regularly set aside, will preclude the heirs from calling on him to account for profits. which he made by secretly becoming the purchaser, through an agent, of property sold by him as administrator at public outcry, and afterwards resold by him at private sale for his individual benefit and advantage.

Judgment affirmed.

All the Justices concur, except Fish, G. J., absent. B. B. Baxter and William II. Fleming, for plaintiffs.

Purchase by administrator at his own sale, voidable, etc.: Ga. R. 12/591; 30/780; 39/381, 672; 46/290, 361; 69/372, 385, 518, 605; 106/-813; 107/449, 780; 116/28; 22/637; 33/163; 78/181; 99/730; 99 Am. Dec. 464; 6 Am. St. R. 262; Schoul. Ex. §358; 11 Am. & Eng. Enc. L. 1150, 1153. Duty as to administrator’s return: Civil Code, § 3462. Effect of judgment of discharge, and collateral attack thereof; Civil Code, §3510; Ga. R. 18/346; 98/791; 108/430. Lapse of time not counted until discovery of real facts of fraud: Civil Code, §§3785, 3772, 3510; Ga. R. 23/249; 59/338; 90/550; 94/490; 87/267; Schoul. Ex. §§ 358, 393; 19 Am. & Eng. Enc. L. 242; 130 U. S. 324; 21 Wall. 348.

Henry O. Boney, Q. Henry Cohen, and Boclney S. Cohen, for defendants,

cited Civil Code, §§ 3510, 3933, 3934, 3987, 5370; Ga. R. 56/101, 684; 101/594; 104/272; 18/346; 119/887; 121/547; 108-/439; 68/484; 12/68; 120/929; 117/471; 81/611; 98/487; 124/-980; 19 Am. & Eng. Enc. L. 242, 251; Bisp. Eq. (6th ed.) 383; 60 Miss. 839; 28 Fed. R. 280; 13 Ib. 152.

Cite This Page — Counsel Stack

Bluebook (online)

54 S.E. 821, 126 Ga. 119, 1906 Ga. LEXIS 345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wicker-v-howard-ga-1906.

Opinion

Related

Cite This Page — Counsel Stack