Conyers v. Gray

67 Ga. 329 | Ga. | 1881

JACKSON, Chief Justice.

The administrator de bonis non applied for the writ of ne exeat against an attorney at law of the former administr tor, who had the funds of the estate in hand, which lie had collected for that administrator. The attorney was also one of the sureties of the former administrator, and having been ruled by the administrator de bonis non for the money, answered that he had offered to pay it if his fees and those of associate counsel employed by the former administrator were allowed, and that he no longer held the money as an attorney, but to save himself harmless as surety on the bond, he having paid the money to the former administrator, who returned it to him for that purpose. These facts were also set up against the ne exeat, and in answer to the bill the respondent said that when it-was answered — at that time — he did not mean to leave the state, but might change his mind.

The application for the writ was denied by the chancellor and the administrator excepted.

1. The respondent ought to pay the money collected-for the estate to him whom the law clothes with the authority to receive it. His reasons for refusing .to pay it-are n'ot at ali sound in law. If, as he claims, some few hundred dollars worth of fees are due him as counsel, the extent to which equity will permit him to go is to retain enough to pay those fees, but surely he should not keep the several thousand's he has of the money collected for this estate by him, and belonging to the estate, in order to force the estate to a .settlement of his fees by withholding from it what belongs to it. Equity will not permit an attorney at law thus to extort fees by withholding a vast deal more of another’s money than will suffice to pay them. It will not allow him to say “unless you will give me a receipt in full and close up my fees at my own charges, I will not pay over to you any of the money belonging to you.”

Nor will it allow'him to retain the funds of the estate collected by him in order to indemnify himself as surety of the administrator, whether the former administrator, whose surety he was, agreed that he might do so or not. Payment to the administrator de bonis non of these funds will relieve him from liability to that extent, and his retention of it could not possibly indemnify him a single cent more. Indeed, the best way to relieve himself as surety is to pay over the money he has. The receipt of the administrator de bonis non is the very best security he can procure to indemnify himself against loss. If he should keep the money, he might lose it by bad investments or otherwise; but when it passes from his pocket to the administrator, he cannot lose a cent of it — his bond is paid exactly to that extent, and to that extent no power can make him pay it again.

So that this idea of retaining the money to indemnify Ihimself as surety, looks like a subterfuge or contrivance to Iceep it, not for that purpose, but for some other. A court of chancery will no.t for a moment tolerate such conduct in any fiduciary officer, and especially will it see to it that no counsellor, attorney or solicitor, shall hold funds belonging to others for the purpose either of extorting fees or of indemnifying himself as surety, when his very best indemnity is to pay the money where it belongs. These fees were rejected by the ordinary, and thus have received the condemnation of the courc, whose duty it is to pass upon them ; but even if allowed, they would furnish no reason for retaining more of the client’s money than enough to pay them..

2. But conceding that the attorney should pay over the money, and that he cannot hide behind so thin a veil as that here set up, it is insisted that the writ of ne exeat ought not to be granted.

What are the facts? He has notified opposing counsel, or other gentlemen, that he would leave the state, and has withdrawn his application in respect to letters of administration of certain estates, in open court, on the ground that he intended to remove out of the state. True, when the bill is filed he answers that he does not now intend to remove, but still reserves his right to change his mind. Doubtless, or at least perhaps, that mind will change when the ne exeat is finally refused and no security is given for this fund.

At all events the proof is overwhelming that just before the bill was filed, his purpose -was to remove, and that proof is not to be rebutted by such a change of mind as this answer sets up.

3. But it is said further that there is ample remedy at law, and that suit is now pending on the administrator’s bond, on which he and others are sureties. The reply is, that equity will not remit the complainant to a suit on a bond when he is following the very assets of the estate, and the best sort of assets — money, and money held by the attorney who collected it and is liable for it with certain interest fixed by law from the refusal to pay it over. Especially will it not do so when the whole taxable estate of the attorney is but some two thousand dollars, scarcely half what he collected, and the other sureties might die and procrastinate payment, or the suit on the bond prove unproductive for any other reason in the many defenses which may be made and the shifting circumstances of men. It will .not remit the suitor to so uncertain a remedy, to any such law suit, but will lay its hand on the fund that this fiduciary agent has, and which belongs to his cestui que trust, and not permit him to quit its jurisdiction with the client’s money in his pocket till he has secured it beyond peradventure.

That ne exeat is the remedy, see Code, §3226, which declares that this writ will be granted “against persons illegally removing the property of a decedent at the instance of any person interested therein.” This person is about to take this money of this decedent' illegally out of the state, and the administrator de bonis non is the person interested for all the heirs and creditors, and interested because it is his sworn dut^ to collect this fund for them. • Section 3227 declares that the complainant “must show that no adequate remedy is afforded at law, and that the defendant is either removing, or about to remove, himself or his property, or the specific property to which the complainant claims title or an interest.” We see no adequate remedy at law for this complainant on the overwhelming facts this record discloses, and we see from the evidence that the defendant is about to remove beyond this state, or was when this bill was brought, himself and this money too, the title to which is in this complainant.

Therefore, we think that'the chancellor erred in not granting the prayer for this writ in this case, and it is remanded, that action may be taken by him in accordance with this opinion.

Judgment reversed.