49 S.E.2d 772 | Ga. Ct. App. | 1948
The general rule is that the estate of a testator is not liable for tortious acts of an executor committed in the administration of the estate. This rule is subject to exceptions. Where pecuniary gain results to the estate from the tortious acts, it may be liable therefor, and where the executor is empowered and directed by the will to conduct and continue the business of the testator, and in so doing commits an actionable tort, the estate is liable to the same extent as an individual would be liable. This case falls within this latter exception.
"As a general rule, the estate of a decedent is not liable for tortious acts of an administrator or executor, committed in the course of the administration of the estate." Hundley v.Pendleton,
Another exception to the general rule has been recognized and applied by this court. Where an executor is empowered and directed by the will to conduct and continue the business of the testator, and in so doing he commits an actionable tort, the estate is liable to the same extent as an individual would be liable. This was held in the case of Ernest G. Beaudry Inc. v.Freeman,
The will herein involved directed that the executors named therein "shall receive, hold, manage, and invest and reinvest the property of my estate." It provided that the property be divided into three equal shares or parts, and that the net income and corpus of the respective parts should be held and distributed *700 in satisfaction of three life estates, one to each of two sisters and one to a brother of the testator, and ultimately to their children or grandchildren. The will also authorized the executors to encroach upon the corpus of the estate at any time, for purposes therein stated, and to sell, exchange, and dispose of any or all of the property at public or private sale, for cash or on terms, in such manner as they deemed proper, including the right to lease for any term, and to invest and reinvest all moneys coming into their possession according to their discretion, in such loans, stock, bonds, securities, or real estate as they deemed best for the interest of the estate, irrespective of any statute or rule of law then or thereafter in force. It also provided that in the management of said property, and in the sale, investment, and reinvestment thereof, the executors were not required to report to or secure the approval or consent of any court, or to make any annual or other returns to any court. The will clearly provided a testamentary plan for the holding, management, control, and operation of the properties of the testator by the executors, in such a manner as to amount to the carrying on or continuance of the testator's business. The testator died in 1943 and the plaintiff was injured in June, 1947. In our opinion the facts of this case bring it within the ruling of the Beaudry case, supra.
We have not overlooked any cases cited and relied on by the defendants. Most of the cases on which they rely are cited inGallovitch v. Wylly, supra, and they differ from the instant case in that the executors or administrators in those cases were not carrying on the business of the decedent. The more recent case of Watson v. Watson, supra, is distinguished on the same ground; and the ruling in C. S. National Bank v. Hendricks,
The trial court erred in sustaining the general demurrer to the petition of the plaintiff.
Judgment reversed. Sutton, C. J., and Felton, J.,concur.