Green v. Allen

45 Ga. 205 | Ga. | 1872

McCay, Judge.

We think this bill not demurrable. It shews, as it seems to us, a strong case of danger to the administrator if he be left to his legal defense by plea alone. Under our statute, debts have their dignity fixed at the death of the intestate. The administrator has no right to pay one creditor of equal dignity to the detriment of another, nor can one creditor, in case of a deficiency of assets, get the preference of another by getting a prior judgment: Code, 2494.

At common law, the administrator might select among creditors of equal degree, and one of them might get a priority over the others by getting a judgment: Williams on Executors, 886, 894.

The plea of plene administravit, or plene administravit prmier, at common law, was that the administrator had paid, other debts of equal dignity, or that they had been reduced to judgment and were thus of higher dignity: Williams on Executors, 1667, 1670.

But under our law, the executor must take the risk. Even if he plead outstanding debts of equal dignity, the truth of the plea may be denied, and lie has no means of sustaining his plea except by showing that such claims exist; and this would not bind the plaintiff. Suppose the administrator should fail, in a contest between him and one creditor, to show that the claim of another was valid, and judgment should go against him for the full amount of the debt of the suing creditor. In a subsequent suit by the outstanding creditor, this judgment would not protect the administrator. So it might happen that, in such a plea, the administrator might show outstanding debts, and the suing creditor might only get a judgment for a portion of his debt; and yet the administrator might afterwards successfully defend against an outstanding debt.

Where there is a bona fide dispute among the creditors as to the rightfulness of their claims, we think equity has jurisdiction to compel them all to come in and settle the dispute, so that the administrator may not be compelled to take the risks we have indicated.

Judgment reversed.