Bailie v. Kinchley

Trippe, Judge. 1. The terms used in the will conferring powers on the executors, were very strong and broad, to-wit: “I direct all my just debts to be paid, and to enable this to be done, as well as for the purpose of managing and distributing my estate, my executors, or the one that may qualify, are authorized to sell, exchange, or otherwise dispose of, any portion or all of my estate.” These words are certainly as strong as those in the will, the construction of which arose in the case of Mattox vs. Eberhart, 38 Georgia, 581. As in that case, other features in the will were taken as aiding in the construction of the terms, “ sell or exchange,” so there are others which may be considered in this. Here there are the additional words, “ or otherwise dispose of,” “ for the purpose of managing,” etc. It was also proved that the testator was a cotton factor, and that the condition of his business probably required just such a transaction as this was with the defendant, to raise money. Indeed, the defendant testified that such an emergency did occur, and was the foundation o,f the arrangement that was made. We think the words of the will, the situation of the testator as to his business at his death, and the principle asserted in the decision of Mattox vs. Eberhart, supra, sustain the ruling of the court on this point. It is true, the testimony on the facts touching this question was conflicting. The defendant positively states them to be such as will support the verdict. It was for the jury to decide, and in such a case this court will not interfere unless a clear case of abuse of discretion is shown. 2. If the defendant acted in good faith in the matter, he is not responsible because the executor himself failed in his duty. A regular purchaser of property from the representative of an [493] estate, is not bound to see that the representative does not appropriate the money paid to his own use. Nor is one who pays him a debt, or otherwise legally deals with him, affected by the default of the executor or administrator, as to his action in reference to what may thus go into his hands. 3. Plaintiff introduced in evidence the judgment of the court of ordinary, which vested the sole management of the estate in the hands of the other executor, the plaintiff in error. This was after both had qualified and acted as such, and after the transaction had occurred which brought about this suit. The defendant offered the petition of the applicant (one of the legatees,) on which that order was granted. This was objected to by plaintiff and the objection overruled. We do not see how this could have damaged the plaintiff. Our attention waa called to nothing in it which could have that effect. Besides, it simply made the record complete as to the whole proceedings on which a judgment was founded. 4. Counsel for defendant in error urged in the argument that the defendant was entitled to damages under section 4286 of the Code. That section says : “ Ten per cent, damages may be awarded by the supreme court upon any judgment for a sum certain, which has been carried to said court and there affirmed ; provided, in their opinion, the cause was taken up for delay .only,” etc. This was an action of trover. There was a general verdict for the defendant, for cost, without saying anything as to the purpose for which the case was brought here. This is not one in which damages can be given. Judgment affirmed.