Lewis v. Hill

87 Ga. 466 | Ga. | 1891

Simmons, Justice.

The facts of this case will be found reported in the case of Lewis v. Armstrong, 80 Ga. 402. The decision as announced in that case covers all the points of law made in the present bill of exceptions, and they are res adjudicata so far as the present case is concerned. At the conclusion of the opinion the following direction was given : “ The court should ascertain upon the next trial the amount of Ray’s property that was subject to this judgment and execution, and determine how much thereof was released by the plaintiff, and credit whatever amount was released to the heirs of Lewis.”

The court, on the last trial, undertook to carry out this direction, but erred in crediting to the Lewises the amount only which Ray’s property brought at the administrator’s sale. Under the evidence adduced at the last trial, it is manifest that the heirs of Ray, by some arrangement among themselves, received all the property, real and personal, of their intestate. The evidence shows that the widow of Ray purchased all the real estate at the sale. She had no separate estate, and there was no bid other than hers at the sale. Her two sons, the administrators, testified upon this trial, by interrogatories, that the real estate bought by their mother was worth $2,500 more than she gave for it at the sale; and that they would not have allowed it to be sold to an outside party for the same amount. Coney, another witness, testifies that the real estate was worth about $2,500 more than it sold for at the sale ; that he was one of the appraisers of the intestate’s estate, and that the inventory and appraisement were correct, and that the estate was worth the amount it was appraised at, to wit, $11,703. The value of the estate, as returned by the administrators after the sale, was less than $5,000. Another witness testified that he was intimate with the Ray boys, the administrators, and that they knew their father had signed the injunction bond and were uneasy about it, and they said they were anxious to wind up their father’s estate as soon as possible to avoid the bond if they could'; that he knew the value of Ray’s estate when Ray died, and there was no change in values until after it was wound up and the railroad came through the county; that T. J. Ray, one of the administrators, told him he sold the property for less than it was worth, to make the estate as small as possible, to avoid the bond ; and he further testified that Mrs. Ray had no separate estate; that she continued to live on the estate place and was supported from the place by her sons; they all lived on the places.

This evidence shows that the real value of the i’eal estate was much more than the widow gave for it at the administrator’s sale, and the court should have found the true market value of Nay’s estate, instead of being governed by the amount which the widow bid at the sale, and should have given the Lewises credit for the true value. The Nays were liable to Armstrong for the real value of the estate, less the debts of higher dignity, and less also the pro rata of other debts of Nay’s estate of equal dignity with the bond from Nay to Armstrong, the dignity of the bond from Nay to Armstrong being that of promissory notes, and debts ranked by the code with promissory notes (§2538, par. 7). Of course the $1,000 paid by T. J. Nay to Armstrong as a compromise and settlement of his father’s liability on the bond, will be counted as if paid out of Nay’s estate.

Judgment reversed on the main hill of exceptions, and affirmed as to the cross-hill.