104 Ga. 253 | Ga. | 1898
Upon the death of the owner of realty the title vests immediately in the heirs, but the title to all other property of the estate vests in the administrator for the purpose of distribution among the heirs and creditors. Civil Code, § 3353. It follows from this, that before heirs of an intestate can ordinarily acquire title to any personalty of the estate, they must obtain such title through the medium of the legal representative of the estate. The right, therefore, to collect a chose in action belonging to the estate is vested by law in the administrator. Where such chose in action has not been duly set apart to an heir, he has no title to the same, and therefore no right to enforce its payment by a suit in court. Under section 3427 of the Civil Code it is provided that if the administrator for any cause declines to place any claim in suit, he may nevertheless assign the same to a distributee or creditor, and thus confer upon such assignee the right to prosecute a suit in his own name. But it is further provided in the same section, that when the proceeds of such claim are recovered, after paying the expenses, the administrator is entitled to the possession thereof for the purpose of distribution. The case of Murphey v. Pound, 12 Ga. 278, was a bill filed by certain legatees to recover a legacy bequeathed to them under a will. It was held that the bill could not be maintained; that, the property sued
Judgment reversed.