McLendon v. Woodward

25 Ga. 252 | Ga. | 1858

By the Court.

Lumpkin, J.

delivering the opinion.

1 rather regret not having followed the inclination of my mind, at the time, and dissented from the judgment of affirmance in this case, leaving the opinion of the Court to be written out by one of, my brethren. But as the bill was retained In Court,by awarding to the complainants therightto amend* I acquiesced.

As a whole, it occurred to me, at the time, and does still, that there is equity in this bill. Whether it be charged with sufficient definiteness and fullness, may be questioned. This is, in point of fact, a hill for account and distribution, filed by a portion of the heirs, against the rest, including the administrator, who is a son, of the deceased, with the defendants, on account of his alleged complicity with them, in the conversion of the estate. It is set forth, that by reason of the imbecility of their common father, on account of his age, for some years before his death, one of the sons, Newdigate H,, managed and appropriated his entire property to his own use— hiring the negroes, selling the crops, &c., &c. That all the sons, confederating together, procured deeds of gift to be executed to each, for certain negroes, which they took into their possession, and still hold. That the administrator, it is true, has instituted suits at law, to recover these slaves, but it is insinuated, rather than charged, that being himself in pari delicto, he will not prosecute these actions, vigorously and in .good faith. And the bill states, that notwithstanding application has been made to him, to file a hill, for the purpose of having these sham and fraudulent titles cancelled, that he has failed and refused to do so.

Now we all agree, that an administration in the due course «of execution — and especially where it is admitted, as in this case, that as to the assets, of which the intestate died seized and possessed, they have been faithfully managed — I say such an administration, should not be superseded or control! ed for slight causes. Otherwise, the Courts will be crowded with applications for that purpose, upon the most frivolous grounds. Still, if a special case be made, and perhaps the strongest that can he made, is collusion between the administrator and the parties sought to be made chargeable, a Court of Equity will undoubtedly interfere. Does this bill make such a case? Under the judgment of the.Court, the combination or common intent between the sons to defraud the other children and grand-children of old man Woodward, by fraudulently confederating to procure the deeds of gifts, to each, respectively, for certain of his slaves, should be more distinctly alleged. The acts or contrivances by which the donor was circumvented, might also be set forth with more particularity. The value of the slaves at the time they were given; for perhaps this may involve the question of advancements in the distribution of the estate; and perhaps the bill might be amended with that alternative aspect, should the gift of the negroes be valid. The community of purpose between the administrator and the defendants in trover should be directly charged, and not left to be inferred from what is stated. Is there any other fact, except his bare refusal to file a bill, which goes to convict the administrator of a want of good faith to the complainants in the prosecution of these actions? If so, let it be stated. It does not appear from the bill, whether the residue of the estate has been distributed, and the defendants received a full share, irrespective of these slaves. If it has not been divided, why may not the bill be framed with a double aspect ? If the rest of the estate has been distributed, and the defendants have received a full share,without accounting for these negroes in controversy, are the complainants remediless, unless they can subject these slaves to distribution ? The case is suggestive of these and many other views which might be taken of the rights and remedies of those parties. But I forbear.

Judgment affirmed, with leave to amend.