67 Ga. 329 | Ga. | 1881
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
The application for the writ was denied by the chancellor and the administrator excepted.
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
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..
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 He has notified opposing counsel, or other gentlemen, that he would leave the state, and has withdrawn his application in respect to letters of administration of certain estates, in open court, on the ground that he intended to remove out of the state.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.
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.
Judgment reversed.