Lynch v. Kirby

65 Ga. 279 | Ga. | 1880

Warner, Chief Justice.

On December 27th, 1869, the plaintiff brought his action against the defendant as the administrator of Joseph Bohannan, deceased, on a promissory note for $500.00, dated March 6th, 1862, payable to plaintiff’s intestate, due one day after date, and signed by E. Bohannan. On March 12th, 1877, the plaintiff amended his declaration alleging that E. Bohannan was the widow and executrix of Joseph Bohannan, and that by his will she was directed to keep his property together and manage it for the benefit of his wife and children, as though he still lived with them, and that the note sued on was given by her as executrix for the benefit of said estate in the due course of her management thereof under said will, and sought to obtain a judgment against the defendant as administrator, upon the note of Mrs. Bohannan, so as to make the estate in his hands to be administered liable for, the payment of the note, in the same manner as if a note had been given by a trustee for necessary articles furnished a trust estate. The defendant demurred to the plaintiff’s declaration, which the court sustained, and the plaintiff excepted.

There was no error in sustaining the demurrer. In McFarlin vs. Stinson, 56 Ga., 396, it was held that an executor cannot bind the estate of his testator by the execution of a note signed by him as executor. The assets of such estate are only bound for the debts contracted by the testator during life. See 39 Ga., 130. In Gaudy vs. Babbitt, cited by the plaintiff in error, 56 Ga., 641, it was expressly held that this rule has not been relaxed in this state as to executors, administrators or guardians. Besides, we think the amendment was barred by the act of 1869.

Let the judgment of the court below be affirmed.