77 Ga. 692 | Ga. | 1887
This was a bill filed by certain heirs and distributees of an intestate, who died a citizen of Kentucky. There was an administration there upon his estate, and also one in Georgia upon his effects in Georgia. This bill was filed against the Georgia administrator for an account, and the claim set up in it consisted of two classes of debts: (1), those which the testator left owing to him by persons in Georgia other than the administrator; (2), a certain debt which it was claimed was due from a former partnership of which the Georgia administrator Avas the surviving partner. The general questions made were, whether the defendant, as administrator, had used proper diligence to collect as against those other debtors; whether there Avas a debt by note against the partnership of which he was the survivor; and whether, if there was such a debt unpaid at the time he took the administration, he would be responsible for it in his character of administrator, the bill being filed against him in that character.
In respect to this point, we rule as folloAvs; An administrator cannot, without an order from the ordinary, legally sell a promissory note, payable to his intestate, which has
Looking at the legislation of Georgia upon the subject of disposing of choses in action by an administrator, we think it clear that where an administrator has doubtful or insolvent notes to sell, he ought to apply to the ordinary for leave to sell, and make the sale publicly. Code, §2558. He has no right to enter upon a course of trade, with each assets in his own way. It may be that where a note, still in tho channels of commerce, comes to the hands of au administrator, and he wants to realize on it, he could endorse it, treating it as worth its full amount, and getting that much for it. It may be that he could pass title to it under' Georgia law, just as he could under English law; but the question before us relates to dead paper, not paper in circulation. It comes within the very words of the statute, and ought not to be offered for sale, nor the title to it relinquished, nor any attempt made to pass the title to another, save in the mode prescribed by the statute.
Now, laAvis not only to be submitted to the jury, but it is to be applied by them; and where its application is materially aided by a specific request, there seems as much reason to give that request as to give the principle ; and looking to the evidence in this case, we have no doubt that the request was a proper one. It was bringing the ■ general principle down to this specific instance; and the jury would have been helped materially by having the very words of this request delivered to them as a part of the charge of the court. A large part of the pressure of •the case was upon this one paper.
Of course this inventory would not be conclusive that
We x-everse the judgment refusing a new trial, on the points discussed in the second and fifth heads of this opinion.
Judgment reversed.