32 Ga. 31 | Ga. | 1861
By the Court.
delivering the opinion.
Was the decree rendered in this case in accordance with the law and testimony ?
It is argued that John Roberts, as executor, had a right to take possession of all the assets, and that having done so, Luke Roberts is not liable until and unless he recovers the balance coming to his sister, Mrs. Thomas, out óf the estate of John Roberts, his co-executor. Is this so? The sale w'ds the joint act of both. What right had Luke Roberts to consent that the whole proceeds should go into the hands of his brother? He had an important trust to perform under the will of his father, to-wit: to recover the legacy coming to Mrs. Thomas, and to invest it, paying her over the accruing interest. No matter where the contrary doctrine is asserted, I deny that either of two executors is entitled to take possession of the whole of the assets of the testator, to the exclusion of the other. To be appointed executor is to be invested with an office of profit. What right has either to appropriate the whole to himself? But no such case is made in this record. Luke Roberts consented that John Roberts should take charge of everything. This was his own act, for which he is and should be held responsible, under the facts of this case. He had the right to allow • his own portion to go into the hands of his co-executor, but. he could not consent for his sister’s portion to be thus appropriated. As it respects this, he had a duty'to discharge. She could not act, only through and by him ■ he was bound to act for her.
Waiving this aspect of the case, and also the question of diligence in collecting this fund, eight years having elapsed since the sale notes fell due, the defendant has paid interest yearly on the whole amount, $2,286, and tax, as trustee for Mrs. Thomas, on that sum, which ought to have been paid by the executor, if the fund still remained in his hands. I say, did not these circumstances authorize the conclusion that the whole legacy was turned over ? If so, Mrs. Thomas was justifiable in filing her bill, and the jury, in decreeing for the whole amount of $2,286, and also in disallowing attorney’s fee for defending this proceeding.
As to so much of said decree as compels the trustee to give security, we should dislike, in any case, to control the discretion of the Judge and special jury in a matter of this sort. The trustee may be worth three times the amount of the trust fund, still he admits his property is not very large, and that he has sold a tract of land and three negroes. In other words, he is converting his visible property into money and choses in action, which may be much more readily wasted or made away with than land and negroes.
As to the pecadilly amount of interest, it is too small, if true, to require correction.
As to the complaint, that the decree is so shaped as to hinder the defendant from recovering from John Eoberts’ estate the balance unaccounted for, we have only this to say, that the decree could be amended without prejudice to the rights of the complainant. Ko objection could be interposed. But suppose this cannot be done, the fault lies at the door of the defendant, by neglecting to retain, as he had a right to do, enough in his own hands for his cestui que trust, or for
Judgment affirmed.
