11 Ga. 658 | Ga. | 1852
By the Court.
delivering the opinion.
The complainants in this bill, are the heirs at law and legal distributees of the late Eli S. Shorter, deceased, who seek a decree for that portion of the estate of the decedent, which wrent into the hands of James H. Shorter, one of the administrators thereof; alleging fraud, mismanagement and waste, on the part of such administrator, who is now dead, and George Hargroves, who is his administrator, is made a party defendant.
Sophia H. Shorter, who is one of the distributees of said estate, and James H. Shorter, were the administrators on the estate
The defendant insisted in the Court below, and contends ■ here, that Sophia H. Shorter, who was one of the administrators of Eli S. Shorter, deceased, is a necessary party to this suit.
This bill only seeks a decree for so much of the estate of Eli S. Shorter, as went into the hands of James H. Shorter, as his administrator, which has been administered, improperly managed, and wasted by him. The bill does not seek to charge Mrs. Shorter, the other surviving trustee, with anything; but on the contrary, expressly charges, that James H. Shorter had the sole, exclusive, and entire control of the administration of said estate. A devastavit, by one of two administrators, will not charge his companion, unless he has intentionally, or otherwise, contributed to it. (Williams’ Exrs. 1118.) The rule, as applicable to the case made by this bill, is stated by Mr. Justice Story, in his Commentary on Equity Pleading. “If the bill is so framed, as only to seek an account of so much of the trust fund, as has come to the hands of a particular trustee, he alone is a necessary party, at least, unless the bill should charge a breach of trust in all the trustees.” Story’s Eq. Pl. 191, §214.
In regard to voucher number 7, contained in the returns of James H. Shorter, to the Court of Ordinary, which appears in the record to be as follows : “ Cash paid Eli S. Shorter’s subscription to open street by H. S. Smith, $500 00the allegation in the bill is, “ that the said James H.- Shorter misapplied the funds and effects of said estate, in this, that he paid, as shewn by voucher No- 7, in the.return for the year 1837, five hundred •dollars, when there, was no debt due from, said estate, and mo legal ■evidence of the same furnished by said James H.” Now if the administrator paid out $500 00, when there was no debt due, for which the same was paid, and no legal evidence of the same furnished by him, then the credit for that amount ought not to be- allowed ; and the. Jury on the trial of the cause, will be authorized.so to find,.if the complainant shall then prove.the allegation»» by, satisfactory evidence. The existence ox.non-existence