Gaskin v. Mobley

Beck, J. (After stating the foregoing facts.) This petition was filed in the month of May, 1914. William Hinson’s will was probated on August 7, 1905. Mrs. Mary Hinson, his wife, was named as executrix in the will, and on the day last mentioned she duly qualified as executrix and thereupon took charge of all the assets of the estate of the testator. On the 8th day of August, 1905, Mrs. Mary Hinson, as executrix of William Hinson, executed and delivered to L. 3?. Hinson her power of attorney, constituting him her attorney in fact "to handle the estate of said William Hinson, deceased, for her and in her stead.” In the document making L. F. Hinson her attorney- in fact she attempted to confer authority upon him to perform and carry out the terms of the will of William Hinson, to execute conveyances of title in the name of the executrix, to assent to legacies in her name as executrix, and generally to do and perform every act and thing necessary or proper in the discharge of her duty as executrix under the said will of William Hinson, as amply and as fully as Mrs. Mary Hinson herself could do. Mrs. Mary Hinson died on March 26, 1911, and L. F. Hinson died on September 20, 1912. From March 26, 1911, until July 7, 1913, the estate of William Hinson, deceased, was unrepresented, but on the day last mentioned the petitioner, Gaskin, was duly appointed and qualified as executor of the last will and testament of William Hinson, it being provided in the will that he be made executor thereof after the death of Mrs. Mary Hinson. During the year 1906 L. F. Hinson and the Baxley [378] Banking Co. were guilty of the acts of wrongful appropriation of funds belonging to the estate of William Hinson as charged in the petition. In the petition as it originally stood, ignorance on the part of Mrs. Mary Hinson, executrix, of these wrongful acts committed by L. F. Hinson and the bank, was alleged; but in the amendment subsequently filed it was charged that the executrix, Mrs. Mary Hinson, failed to discover whether L. F. Hinson and the Banking Company were dissipating and squandering the estate ■ of William Hinson, “or, if she did discover the same, she remained silent and did not act to protect the interest of said estate,” and did not communicate the same to any of the beneficiaries under the will, nor to petitioner, up to the time of her death, and for a considerable time thereafter neither petitioner nor the beneficiaries under said will had knowledge of the manner in which the executrix had failed and refused to discharge her duty as such or the manner in which the said estate had been dissipated and squandered by L. F. Hinson and the Baxley Banking Co.; nor did they have any knowledge that said facts were true until long after the death of said executrix. We are of the opinion that the court erred in refusing to sustain the general demurrer of Mrs. Mobley, administratrix, based upon the ground that the claim of the plaintiff against the estate of her intestate was barred by the statute of limitations. Construing the pleadings most strongly against the pleader, the petition as amended, relatively to the question of notice of a misappropriation of the funds by L. F. Hinson and the Banking Company, must be construed as showing that Mrs. Mary Hinson had knowledge of these acts. When the pleader added by amendment, “or, if she did discover the same, she remained silent and did no act to protect the interest of said estate,” there was no longer a positive allegation of ignorance upon her part of the acts of waste charged. Nor is Mrs. Hinson or her estate made a party defendant to this ease, so as to make her liable for the acts of her agent. In so far as the general power of attorney executed by Mrs. Mary Hinson purported to confer upon L. F. Hinson general power and authority to act as executor of the will of William Hinson, it is of course void. She was executrix, but she had no power to confer this office upon another, and her effort to do so was vain. She did not, in the execution of this void paper, effect an abdication of [379] her office; she was still executrix. The estate as long as she was in life had a representative, and the statute of limitations ran against it; and the misappropriation of money belonging to the estate by L. 3?. Hinson was a wrong for which suit should have been brought within the statutory period. While the acts of L. F. Hinson and the bank.in the handling of the funds belonging to the estate of William Hinson may have had a general fiduciary quality, they were not executors or trustees, and the rule as to the time within which a suit may be brought in case of a technical or continuing trust was not applicable to them. When Mrs. Mary Hinson failed to sue within the statutory period of four years, the claim of the estate against the bank and against L. F. Hinson became barred by the statute of limitations. Thomas v. Brinsfield, 7 Ga. 154. Consequently, the court erred in not sustaining the demurrer of Mrs. Mobley, based upon the contention that the claim against the estate of her intestate was barred by the statute of limitations. It further follows from this ruling that the court properly sustained the contention made by the demurrer of the bank, that the claim against it was barred by the statute of limitations. What we have said controls the disposition of the case, and it is unnecessary to pass upon the special demurrers. As this ruling controls the entire case and makes a final disposition of it, and as the exception to the ruling upon the effect of the statute of limitations upon the claim against Mrs. Mobley, administratrix, was made in the cross-bill of exceptions, the judgment of the court below is reversed upon the cross-bill of exceptions and the main bill of exceptions is dismissed. All the Justices concur.