79 Ga. 143 | Ga. | 1887
An execution in favor of Toombs against McMillan, executor of McMillan, directing the seizure of property of the testator in the hands of the executor to be administered,
After this evidence was in, the claimant offered the will of the testator, for the purpose of showing that by the will the time for distributing the estate had arrived, not before the executor had notice of this claim, but before any action was commenced on it. The will was rejected. The executor offered himself as a witness to prove that he had in fact distributed among the heirs, and divided the estate according to the terms of the will, not before he received notice of this claim, but before any action was brought by the creditor upon it. This evidence also was rejected; and
We look to the case, first, as if the executor alone were the claimant, and treated in that way his position is this: he received this property as assets; he had notice of the creditor’s claim; and he administered to himself these assets before the creditor brought his suit; and therefore the assets are not subject to the lien of the judgment.
We do not think this position can be upheld, nor anything like it. He could not, with notice of an outstanding debt unpaid, take the land of the estate and make it his own by assenting to the devise, if it was devised; and no matter whether it was devised or not, he was charged with the administration of it; if it was undevised estate, he had, as executor, the duty of administering it as if it had been devised. Code, §2445. It was his duty to hold or sell the property to pay the debt, if necessary; and it was necessary, we take it, from the fact that when he was called on for assets by the sheriff, he pointed out this property to be levied on. He did not furnish any other assets with which to pay the execution, but pointed out this property, and there was no effort to show that there were any other assets to pay it with, either when the judgment was rendered or afterwards.
There is no case in which an executor or administrator has been suffered to administer to himself against a creditor of whose claim he had notice. If in a regular and legal method he administers to others, and there is no fraud, that will do; but we have not found a case where he has administered to himself with full notice, and then defied the creditor when the execution came against him.
Judgment affirmed.