51 S.E.2d 821 | Ga. | 1949
The present case was properly dismissed on general demurrer.
(a) Unless an executor is authorized to do so by the will, he has no authority to borrow money for any purpose and bind the estate he represents to repay it. Concerning creditors, this rule is not different where the executor borrows money for the benefit of the estate by and with the consent of the legatees, since the former, as well as the latter, have a right to have the estate legally administered.
(b) A subrogee takes the place of the original creditor to whose rights he stands subrogated subject also to the same limitations. And where the original creditor's right to bring an action to enforce his claim would have been barred by limitations had there been no subrogation, the subrogee's right to do so is likewise barred.
The prayers were: for process; that all other persons having claims against the estate be required to intervene in this suit so as to prevent a multiplicity of suits; that the defendant be enjoined from disbursing the assets of the estate until the plaintiff's claim can be adjudicated; that the plaintiff have judgment for the balance due on her loan; and for general relief.
To the petition both general and special demurrers were interposed. The grounds of general demurrer were: (1) no cause of action is stated; (2) the allegations of the petition do not authorize the granting of any of the relief prayed; (3) the allegations of the petition show that the plaintiff has an adequate and complete remedy at law; and (4) it appears from the petition that, if the plaintiff ever had a cause of action for the relief sought, it is now barred by laches by Code § 3-706, which provides that all actions upon open account, or for the breach of any contract not under the hand of the party sought to be charged, or upon any implied assumpsit or undertaking, shall be brought within four years after the right of action shall have accrued; by Code § 3-709, which provides that all actions against executors, administrators, guardians, or trustees, except on their official bonds, shall be brought within 10 years after the right of action shall have accrued; by Code § 3-711, which provides that all other actions upon contracts, not expressly provided for as to time, shall be brought within four years from the accrual of the right of action; and by section 310, and particularly section 310 (a), of the Federal Revenue Act of 1924, which bars a right of action for the collection of an estate tax after the expiration of five years from the filing of an estate-tax return as required by the act.
Without passing on any of the special demurrers, the court sustained the general demurrer upon each and every ground, and dismissed the suit. The exception is to that judgment. *736
The controlling question in this case is whether or not the plaintiff's petition shows a right in her to have a judgment against the defendant for the balance due on a loan claimed to have been made by her to a former representative of the estate. Unless it does, it will be unnecessary to decide any other question raised by the demurrers. It has long since become a well-established rule in this State that an executor can not borrow money for any purpose and bind the estate he represents to repay it unless there is authority in the will for him to do so.O'Kelly v. McGinnis,
(a) There is no merit in the first contention. The lender, as one of the legatees, and the present representative of the estate are the only parties to the cause. The petition affirmatively shows that there are other creditors of the estate, and it does not appear how any consent given by the legatees for a former representative to borrow money, though it might be binding or work an estoppel as against them if set up with proper pleadings and parties, could bind creditors of the estate or authorize a recovery against the present representative in a suit having the character of the present one. O'Kelly v. McGinnis, supra. The creditors, *737 as well as legatees, have a right to have the estate legally administered by the executor. Upon this theory of the plaintiff's case, the petition fails to state a cause of action.
(b) Assuming that the allegations of the petition are sufficient to show that the plaintiff became subrogated to the rights of the United States respecting its claim for estate taxes, it will be conceded that the subrogee, because of such, acquired no greater rights than the United States originally had, and that she was subject to the same limitations concerning the enforcement of those rights. Harrison v. Citizens SouthernNational Bank,
For the reasons above stated, the plaintiff's right to bring the present suit was barred by limitations, and such being true, the judgment complained of is not erroneous.
Judgment affirmed. All the Justices concur.