116 Ga. 372 | Ga. | 1902
Carr brought a petition for a rule against the sheriff of Hancock county, setting up the will of his father, Josiah Carr,, which he alleged had been duly probated, but was no longer represented, because the executor named therein had renounced his right to qualify, and the administrator with the will annexed had been removed; that there were no debts against the estate of his father,.
1. Even if it were true that there was a balance in the hands of the sheriff, and this balance was not operated upon in any way by the will of the testator, the judgment of the court below dismissing the petition would be sound. The Civil Code,- § 3353, provides that “ Upon the death of the owner of any estate in realty, which estate survives him, the title vests immediately in his heirs at law. The title to all other property owned by him vests in the administrator of his estate, for the benefit of the heirs and creditors.” The next two sections provide fo.r the right of the wife and husband respectively to take possession of property, under the conditions named, without administration. Section 3357 provides that “Upon the appointment of an administrator, the right to the possession of the whole estate is in him, and so long as such administrator continues, the right to recover possession of .the estate from third persons is solely in him. If there be no administration, or if the administrator appointed consents thereto, the heirs at law may take possession •of the lands, or may sue therefor in their own right.” These sections codify familiar general principles of the law. It is well settled that the law lays hold of personalty and deposits it in the hands of its own appointed agencies for the purpose of protecting it against the title of the heirs,.in order that the debts of the ancestor may be paid. This is the general rule, and the exceptions to it are careiully guarded. See Worthy v. Johnson, 8 Ga. 239; Morgan v. Woods,
2. The ademption in this case was not complete, but only partial. The party who gives a security deed has still a large equitable interest in the property. He remains in its possession, and in a very important sense is its owner. The provisions of this will would be operative upon the balance of the money in the hands of the sheriff arising from the sale of the property specifically devised by the will.
It may also be noticed, in conclusion, that according to the sheriff’s answer there were quite a number of executions and claims against the estate, in addition to the small judgment mentioned by the petitioner.
Judgment affirmed.