Simmons v. Byrd

Tripue, Judge. 1. It is sought in this case to hold the executor liable to a judgment creditor of his testator, for not selling the slaves of the estate within less than seven months after his qualification as executor. The special reason assigned as making it a guilty default on the part of the executor in not so selling is, that the negroes were in danger of being lost to the estate and to the creditors, on account of the near approach of the Federal army to the section where the negroes were. We do not think this shows such negligence by the executor as to make him responsible for the loss of the slaves by emancipation, which occurred about nine or ten months thereafter. The slaves were not captured or taken by the Federal army. They were levied on by general consent, plaintiff included, and at his instance. By general consent the negroes were sent off to prevent capture. When so sent off they were under levy, in the custody of the law, and it seems that afterwards all parties were quiet; nothing done under the levy; and the whole matter was closed by the emancipation of the slaves in some six or eight months after their return. It would be a cruel hardship on the executor to make him responsible for not selling the slaves in seven months after he took letters. He was qualified as executor in the latter part of 1863. He had at once to decide whether he would hire them for the next [289] year or sell them. He decided to hire them, and did hire a large portion, working some on the farm belonging to the estate. This was not such an abuse of his power or discretion as to make him responsible for their loss, because, within four months after the expiration of the next year, the slaves were lost by the act of the government. After the levy in July, 1864, and that, too, by consent of the executor, and by the act or direction of the plaintiff, the negroes were in the custody of the law, for it seems that the levy was never dismissed. 2. It is also claimed that the widow and family of the testator consumed a portion of the estate furnished them by the executor, and that twelve months’ support and maintenance had not been assigned them by appraisers, so as to authorize such use of it. We do not think that it is absolutely necessary that there should be a formal assignment made of a twelve months’ support and maintenance to the family of a deceased person, to entitle the representative of the estate to a credit of what he may have allowed or given them for such support. It would, of course, be incumbent on him to show that what he had so furnished was reasonable and proper. He takes the hazard; but if he only furnish what the law would compel him to furnish, he is to be protected. We think this is not only consistent with the cases of Blassingame et al., vs. Rose et al., 34 Georgia, 418, and Wells vs. Wilder, 36 Georgia, 194, but is almost necessarily the result of those decisions. 3. There were a few articles of property not sold or consumed by the family, and which were left with the widow, who was also executrix. The executor pointed them out to the creditor and directed him to levy. The creditor did not do so, and claims in this action, that the executor is liable therefor. The most there is in this point seems to be, that there must have been a dispute between the creditor and executor as to who should perform the ungracious task, so to call it, of selling, or having sold, the remnant of a once valuable estate. The creditor would not levy on it, and seeks, in an action on the case, to hold the executor responsible because he did not. It does not appear that the items of property have been lost to [290] the estate, or as yet lost to the creditor, on account of the executor’s not selling. There is no return on the plaintiff’s execution of nulla bona, and how can he expect to recover for a devastavit by the executor without proof of the waste? We do not think the evidence on this point shows that the executor is responsible. Judgment affirmed.