178 Ga. 581 | Ga. | 1934
Lead Opinion
L. E. Hirschfeld filed a suit in equity against J. J. Barnes and the First National Bank & Trust Company in Macon.
Counsel for the defendant in error contend that the suit is not against the defendants in their representative capacity, but is a proceeding to subject them to individual liability for a wrong for which they should be held responsible in equity. It is insisted that the defendants had actual knowledge of the assignment and of the equitable interest conveyed thereby, and that notwithstanding this knowledge they wholly disregarded the assignment and settled with the legatee. The decision by this court in Graham v. Southern Railway Co., 173 Ga. 573 (3) (161 S. E. 125, 80 A. L. R. 407), is cited and relied on as authority for the proposition that these facts constituted a cause of action. In that case it was held: “An equitable assignment of a part of a debt vests an equitable interest in the assignee to such part, and after notice to the debtor he is bound to apply the fund according to the terms of the assignment, regardless of the wishes of the debtor. A contrary doctrine is in
The statements just made will indicate that we do not agree with counsel for the defendant in error, plaintiff in the court below, that the petition stated a cause of action. Under the facts alleged in the petition, the defendants never could have had any duty in regard to the assignment, except for their relation to the estate as executors. If they owed any duty to the plaintiff such duty necessarily arose from their obligation as executors, and their discharge by the court of ordinary is an adjudication that all duties and liabilities which attached to them as legal representatives were fully satisfied. In view of the judgment of dismissal, we need not actually decide whether the defendants did in fact owe to the plaintiff any duty with respect to the assignment; because, even if it be true that such an obligation did exist, any right of the plaintiff to enforce the same should have been exercised before the granting of the discharge.
While it is claimed by counsel for the plaintiff that the defendants committed a wrong as individuals, it is doubtful if the petition should be construed as presenting this theory, the allegation being that “the said executors were in duty bound to pay over to petitioner a sufficient amount” to satisfy the debt. But even if the petition be considered as seeking a recovery for an individual wrong, it fails to show that any such wrong was ever committed.
“The rule that an executor or administrator is liable individually, and not in his representative capacity, for injury to third parties by his tortious acts, is well established.” Anderson v. Foster, 105
Judgment reversed.
Rehearing
ON MOTION FOR REHEARING.
It is insisted in the motion for rehearing that we overlooked the fact that in the case of Anderson v. Foster, 105 Ga. 563 (supra), s. c. 112 Ga. 270 (37 S. E. 426), the money wrongfully paid out by the executor constituted a part of the assets of the estate of the testator at the time of his death and was bequeathed to his children, one of whom was the plaintiff’s intestate, and that we also failed to recognize the rulings made 'in that case to the effect that notwithstanding the money was a part of the assets of the testator, the executor could not be held liable in his representative capacity for such misapplication of funds. While the decision rendered in the present case may be subject to the criticism which is thus lodged against it, we do not think that a different result is required by the decisions in the Foster case. It appears from the facts of that case that the testator, A. Gr. Foster, owed no debts at the time of his death and that the money was a part of the property devised in the residuary clause of his will to be equally divided between all of his children. In these circumstances, the legacy was apparently considered by this court as having been impliedly assented to, with the result that the title to the money was vested in the legatees. Webb v. Hicks, 117 Ga. 335 (3), 342 (43 S. E. 738). If such was the case, the power of the executor over the money had terminated and he committed a conversion when he assumed to deal •
Furthermore, the executor who was sued in the Poster case had never been discharged, and it was not held that a valid judgment dismissing him as executor would not have barred the action against him.
The fact that the executor applied the money to a debt for which he was personally liable may also have had some bearing upon the case. It was held that the estate of the intestate was not liable to the plaintiff. Similarly, it might be said in the instant case that the estate of the testator could not have been held liable for the alleged wrong of the executors; but it does not follow that the breach of duty complained of did not arise out of the office of executor, or that a discharge by the court of ordinary would not operate as a shield against a suit upon such claim.
In the decision as delivered in the present case it was said that “even if the petition should be considered as seeking a recovery for an individual wrong, it fails to show that any such wrong was ever committed.” We should have said that the petition fails to show the commission of any wrong not connected with or growing out of the office of executor. Rehearing denied.