Wilkerson v. Wootten

28 Ga. 568

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

Opinion

By the Court.

Benning, J.,

delivering the opinion.

Was the Court right in granting the nonsuit?

The ground on which the Court went, was, that “ one executor, where there are several, cannot make a contract binding upon testator’s estate.” Is this ground true in law. We think not. It is laid down by Williams, in his treatise on, executors, that co-executors “ have all a joint and entire authority over the whole property and that “the acts o'f any one of them are deemed to be the acts of all.” (2 Williams’ Ex’rs, 683.) In these propositions he is well supported by authority; and we think that the propositions taken generally are true. 8 Ga. 388.

We see nothing special in this case to make the case an exception to the law expressed in the propositions. The executors had the power to employ an overseer, Mrs. Johns was one of them; she therefore, had, by herself, that power.

We think, then, that the ground on which the nonsuit was put was not a sound one.

It was scarcely insisted that it was; but it was insisted that there was another ground on which the non'suit might be supported ; and that was that the overseer had been discharged by the person who had been appointed “ receiver ” of the estate, and who has, as receiver, taken charge of the estate; the argument being, that the appointment of the receiver deprived the executors of the power of fulfiling their contract, and the appointment being lawful and binding on them, they ought to be held excused for not fulfiling the contract. This raises a very important question, and one which was not made in the Court below, or much discussed in this Court. We, therefore, prefer not to decide it, if we can avoid doing so, and we can avoid doing so, for even if we grant the position to be true, yet it was not sufficient to authorize a nonsuit, as the overseer had performed some service under the contract, and therefore, was entitled to recover at least as much as that was worth. The executors do not plead a want of assets.

Judgment reversed.