Knight v. Lasseter, No. 21

No. 21 | Ga. | Aug 15, 1854

By the Court.

Sarnes, J.

delivering the opinion..

[1.] The Act of 1845, referred to in the decision of the Court below, is as follows: “that from and after the passage of this Act, whenever any executor or administrator may have been heretofore, or may be hereafter, removed, or depart this life, chargeable to the estate which he or she represented, it shall be the duty of such removed executor or administrator, or the representatives of such deceased executor or administrator, to account, fully, with the administrator de bonis non, who may be appointed to finish the administration of said estate.”

This phraseology is not accurate; but in the use of the words; “ whenever any executor or administrator may have been heretofore removed,” &e. it is evident that the Legislature intended, by the Act, to give a remedy to the administrator de bonis non, against the removed trustee, or against his representatives, if he were dead, which should have retrospective effect. It seems, in like manner, quite plain, that in the use of the words, “ it shall be the duty of such removed executor or administrator, or the representatives of such deceased executor or administrator, to account, fully, with the administrator de bonis non”, unaccompained by words of exception or restriction, the Legislature designed to give a remedy which should be full and complete, as to all and every portion of the estate, (whether remaining in specie, or converted into cash and notes,) remaining in the hands of such removed trustee, or the representatives of such trustee, deceased; and as to which the rights of other persons had not become vested.

In such a point of view, and for the purpose of operating on the remedy only, the Legislature may, undoubtedly, pass Retrospective Acts; and for such purposes, they are not unconstitutional. (Oglesby vs. Gilmore et al. 5 Ga. R. 62. 1 Kent's Com. 459, 400. Butler vs. Palmer, 1 N. Y. R. 334. 3 Smead § M. 791.)

The decision of the Court below was placed upon the ground, that inasmuch as the proceeds of the property, sold by the deceased executor, had been, by him, converted into cash and notes, and inasmuch as the letters de bonis non, cum testamento annexo of the complainant, had been granted to him before the Act of 1845, the previously acquired right of the legatees and creditors, to an account with the deceased executor or his representative, which had inured to them before the passage of the Act of 1845, could not, by it, be divested.

[2.] In the view which we take of this Act, and of this case, the right to an account, which the legatees and creditors had, vras not divested, by the extension to the administrator de bonis non, of the same right. The right of the complainant, administrator de bonis non, &c. is to be exercised for their benefit, and is entirely coincident with their right. It is not a right hostile to, and in opposition to their interests. So far as any settlement has been made with these legatees and creditors, that has given to them a vested right; and with it, the Act authorizes no interference. But as to assets or funds, not turned, over of paid to them, the account and settlement sought, is, in legal contemplation, foi their benefit and behoof; and in giving a remedy for this, to the administrator de bonis non, cum testamento annexo, the Act interferes with no vested rights, and is constitutional.

Judgment reversed.