47 Ga. 73 | Ga. | 1872
Allen Cochran died November 30th, 1863, leaving a considerable estate, consisting of land and negroes, which he bequeathed to his two daughters, after payment of his debts. He owed a large amount to various creditors, some of whose claims were in judgment at the time -of his death. He left his brother, Jubal Cochran, his sole executor and trustee for his daughters, one of whom was then married. The will conveyed no unusual power to the executor, as to the disposition of the propérty or management of the estate. The executor proved the will December 7th, 1863, and immediately executed a power of attorney' to one Polhill, the testator’s ■son-in-law, so broad in its terms as to amount, in effect, to a transfer of the entire administration into the hands of the agent thus appointed. Polhill took possession of the plantation,
From the emancipation of the negroes, and other causes, Allen Cochran’s estate became insolvent. In 1865, Patten removed thirty-seven bales of the cotton, and sold them for over $5,000, when the judgment creditors levied on the remaining bales on the plantation. Patten filed his bill against the levying creditors, Jubal Cochran and Polhill, to enjoin the sale, and that the property might be decreed to be his. Jubal Cochran answered the bill, and placed his answer in the hands of his solicitor, W. G. Smith, to file, or not, as he deemed best. , Before Smith could file it Cochran died. In this answer Cochran admitted executing the power of attorney to Polhill, and expressly ratified the sale of the cotton to Patten. The answer also stated, as information derived from Pothill, that about $20,000 of the money received from Patten had been applied to the payment of debts due by the estate of Allen Cochran, and a list of said debts was appended to said answer.
Pending this bill the creditors filed a bill to marshal the assets of Allen Cochran’s estate, to which M. D. Potts, the administrator de bonis non cum testamento annexe of Allen Cochran, was made a party on the death of Crutchfield, the first administrator de. bonis non.
The administrator appears on the record as defendant, but by cross-bill is really one of the complainants, being represented by the same counsel with some of the creditors, and joining in their prayer, so far as the issues now before the Court are concerned. This bill involves many issues between
The creditors and administrators insist that the power of attorney from Jubal Cochran, as executor of Allen Cochran, to Polhill, was void as against them, and the sale of the cotton illegal. Patten, of course, insists the sale is regular. Patten and Polhill are both' parties defendant to the creditor’s bill. Polhill, in his answer, .says he used about $30,000 of the money received from Patten for the cotton in paying the debts of the estate of Allen Cochran, not specifying the character of the debts, their several amounts, to whom paid, nor when.
On the trial, Patten offered W. E. Smith to prove the contents of the answer of Jubal Cochran (which had been lost by him,) to Patten’s bill. Counsel for the administrator and creditors objected, but the Court admitted the testimony. Smith was unable to recollect anything more definite as to the debts paid by Polhill than the latter states in his answer to the creditor’s bill. The complainants also insisted that the sale of the cotton to Patten was invalid, because it was not brought to market and sold, and that the sale of the crop made by the executor was invalid, because not sold at public sale, the law authorizing an administrator to sell annual crops in market at private sale, only applied to such crops as were made by the administrator himself. Patten insisted that if the sale was invalid, then he was entitled to have his money refunded, as it was proved to have gone in payment of the debts of the estate to the extent of $30,000 00, and that, although he had paid Confederate money, yet the money had paid gold debts of the estate to that amount, and he was, therefore, entitled to have that amount refunded. During the progress of the trial, the complainants offered in evidence the report of an auditor, by whom their claims had been audited under direction of the Court. Patten objected to the evidence and the Court overruled the objection. Patten also moved to exclude
This decision was made by the Court of Common Pleas, in 1796, and it is worthy of remark that the same power of attorney, in the same year, came before the Court of King’s
Let the judgment of the Court below be reversed.