113 Ga. 381 | Ga. | 1901
When this ease was called in this court a motion to dismiss the writ of error was made, on the ground that the bill of exceptions does not plainly and specifically point out the alleged error, or specify wherein the judge erred in rendering the judgment of which complaint is made. We do not think that this motion was well taken. It appears that in the court helow this case was referred to an auditor, who held as matter of law that an administrator could not, as against the rights of heirs, pay to himself a debt due to him by his intestate and which had become barred by the statute of limitations before the death of the intestate. An exception of law was made to this finding, and in such exception the point was distinctly made that the auditor’s ruling -was erroneous. The case was by consent heard before the judge without the intervention of a jury, and the exception thus made was sustained. These facts are set forth in the bill of exceptions, and the following words are added: “ To which finding and judgment the plaintiffs excepted, and now assign the same as error.” The ruling of which complaint was made is thus plainly set forth for our consideration, and the motion to dismiss the writ of error can not, therefore, be sustained.
The question of law ruled upon by the auditor is the only one now here for decision, viz.: whether or not an administrator can, as matter of right, pay to himself a debt due to him by his intestate which was barred by the statute of limitations before the death of the intestate. As to this, we agree with the auditor and differ with the judge. Section 3433 of the Civil Code declares: “An administrator in his discretion may relieve a debt from the bar interposed by the lapse of time, by a new promise to pay: Provided, such har had not occurred in the lifetime of his intestate.” The language of this section was embodied in the first code of the State. See Code of 1863, § 2501. It was also contained in section 2542 of the Code of 1882. From all that appears, the principle thus announced has been the recognized law ever since the adoption of the
The principal case relied upon by counsel for plaintiff in error is Baker v. Bush, 25 Ga. 594, where it was ruled: “An administrator may retain a debt due himself from his intestate, though the debt was barred by the statute of limitations at the death of the intestate.” It will be noted, however, that this decision was rendered in the year 1858, prior to the adoption of the first code. Justice Benning, in his opinion in that case, bases the ruling made upon the “letter of the statute” and upon “decided cases.” It nowhere appears to what statute he refers, and no Georgia cases are cited to sustain his position. But, however the law may have been at the time that this case was decided, it is certain that under the plain letter of the code, which governs the decision of this case, we would be wholly unauthorized to follow the ruling there laid down. We therefore conclude that the finding of the auditor was correct, and that the court below erred in sustaining the exception taken to his report.
Judgment reversed.