Bellerby v. Thomas

Fish, J. 1. The petition of an administrator to marshal the assets of his intestate’s estate showing a complicated state of affairs, making equitable intervention appropriate, and the petition not affirmatively disclosing that this complication was due exclusively to mismanagement on the part of the administrator, there was no error in overruling a demurrer to the petition. 2. The fact .that the widow of one who had given a mortgage upon realty took dower in the land does not entitle the mortgagee, in a [478] distribution of the assets of the estate of the deceased husband, to be treated as having “contributed” anything towards the payment of its liabilities. The taking of the dower was simply a lawful act which diminished the value of the mortgage as a security. Argued January 81, Decided April 1, 1898. Petition to marshal assets, etc. Before Judge Felton. Bibb superior court. November term, 1896. T. B. West and Hardeman & Moore, for Bellerby. J. A. Thomas, Dasher, Parle & Gerdine and Smith & Jones, contra. 3. Where a person buys land at an administrator’s sale, pays a part of the purchase-money in cash, and delivers to the administrator a promissory note for the balance, with the understanding and agreement that the note will be paid upon demand by the administrator if it should become necessary for the latter to have the cash for the purpose of distribution, such note, in a proceeding to marshal the assets of the estate, may be regarded as cash in the administrator’s hands, so far at least as to warrant a judgment against the maker for such portion of the amount specified in the note as may be requisite to a lawful administration of the estate. 4. An instrument in the form of a bill of sale, though given for the purpose of securing a debt, passes title when it expressly stipulates that “it puts the title to all of the [described] property” in the creditor and contains no language giving it the character of a mere mortgage. 5. In the light of what is above laid down, the judgment of the trial court, which by consent was rendered without a jury, was not, for any reason clearly and distinctly pointed out in either bill of exceptions, erroneous. Judgment affirmed. All concurring, except Gobb, J., absent.