79 Ga. 675 | Ga. | 1887
Wilkins & Berrien, copartners, filed a bill in the superior court of Scriven county, against David S. Miller, administrator of James P. Miller, deceased, and Henry Parker, Allen Sasser and Michael Waters, as sureties on the administrator’s bond of David S. Miller, for discovery, account and relief. The bill alleged that they had obtained several judgments against James P. Miller during his life, and that execution had been issued thereon; that James P. Miller died in 1884, and David S. Miller was appointed as administrator in June, 1885, and gave bond with the above named parties as sureties; that said David S., as administrator, took possession of all the realty and personalty of the deceased; that they did not know of what said personalty consisted, but prayed discovery as to that; that said realty consisted of a tract of land in Scriven county, which the administrator had sold for $1,000; and that he had never made any appraisement or return of the property. They prayed that the administrator be required to account for all the property, real and personal,
Miller answered said bill, and admitted that he had been appointed administrator and had qualified as such, and that Parker, Sasser and Waters were his securities on the bond. He denied that he had ever come into possession of any personal property belonging to the deceased, and alleged that the deceased had no personal property at the time of his death. He admitted that James P. Miller died in possession of 207 acres of land in Scriven county, which he held under a deed from Drury Miller, which deed is attached to his answer as an exhibit. The deed from Drury Miller to James P. Miller gives him 207 acres of land, not to be subject to sale or exchange by him, nor liable for any debts he had already contracted or that he might thereafter contract, but recites that the same was intended as a homestead for his use during his natural life, and at his death to go to his legal 'representatives. Miller further alleged in his answer that, neither at the time when he took out letters of administration nor at the time of filing his answer, did he consider that said land could be subjected to the debts of the deceased, but that at the request and earnest solicitation of the heirs at law of said deceased, he, as administrator, applied to the ordinary of said county, on the 9th of November, 1885, for leave to sell said real estate, as the most practicable and economical way to distribute the same in accordance with the terms of said deed. At the December term, 1885, the ordinary granted the order for the sale of the land; and a copy of the order is attached to the answer. The order of the ordinary recites that “ notice of the application for leave to sell the lands belonging to the estate of James P. Miller, deceased, having been published as required by law, and no objection having been filed, . . . it is ordered that said leave be-granted D. S. Miller, administrator of said deceased, to sell
All the parties were served. None of them answered except Miller, the administrator. The bill was taken pro oonfesso as to Parker, Sasser and Waters, the sureties, upon an affidavit made by one of the solicitors for the complainants. The case was submitted to the judge with out the intervention of a jury, upon an agreed statement of facts, as set out in the record; and the judge, upon said agreed statement of facts, entered up his decree in favor of the complainants against the defendants, for $637.09, to which judgment and decree of the court, Miller, the administrator, and W aters, one of the sureties, filed their bill of exceptions, alleging various errors, set out therein, committed by the court in rendering said decree.
We decide this case upon the facts disclosed in the record, not intending to hold that, if proper objections had been filed at the trial, this decree could have been entered up against the sureties on this bond, without the complainants first having obtained a judgment against the administrator,' or made him a party, by scire facias, to the judgments against his intestate. It seems that no point was made upon this in the trial of the case below; and none was made here.
Judgment reversed on terms.