Beavers v. Brewster

• Court: Georgia Supreme Court
• Writing for the Court: BLECKLEY, Justice
• Citation: Beavers v. Brewster, 62 Ga. 575 (Ga. 1879)
• Decision Date: 28 February 1879
• Parties: Beavers, ordinary for use. v. Brewster, administrator et al.

62 Ga. 575

Beavers, ordinary for use. v. Brewster, administrator et al.

Supreme Court of the State of Georgia

(February Term, 1879.)

[This case was argued at the last term, and the decision reserved.]

Administrators and executors. Guardian and ward. Statute of limitations. Parties. Before Judge Buchanan. Camp-bell Superior Court. February Term, 1878.

Report unnecessary.

Lavender Ray, for plaintiff in error.

P. H. Brewster, for defendants.

BLECKLEY, Justice.

The declaration, with the exhibit annexed, shows that Lewis Hobgood died testate, and that his will was probated in 1859; that he bequeathed to his grand-sons Lewis and Thomas G. Hobgood (brothers) one hundred and fifty dollars, each; that W. J. Camp qualified, April 2d, 1860, as administrator with the will annexed, giving, on the same day, bond as such administrator, with certain persons as sureties; that Camp received assets sufficient to pay debts and legacies; that he died, at what time is not disclosed, and that P. H. Brewster became his administrator. Upon the bond of Camp as administrator with the will annexed of Lewis Hobgood, the testator, this action is founded. It was commenced in January, 1875, and was brought in the name of the ordinary for the use of Thomas G. Hobgood, against Brewster as administrator of Camp, and against the sureties who executed the bond with Camp. The object *was to recover both legacies, one of them as directly bequeathed to Thomas G., and the other as having descended to him on the death of his brother Lewis, leaving him sole heir at law. The form of the action is debt, and the declaration is long, but all its material contents can be gathered from the foregoing statement together with the following extracts:

"That from the returns of said W. J. Camp, administrator with the will annexed of Lewis Hobgood, the said W. J. Camp was due to the said Thomas G. Hobgood and his brother Lewis the sum of three hundred dollars, besides interest, on or about the 2d day of April, 1860; that he has had sufficient time to have wound up the estate under the said will, and to have paid over to the legatees their several legacies by the 2d day of April, 1861; that the said Lewis Hobgood, brother of Thomas G. Hobgood, is now dead, and the said Thomas G. Hobgood is his only heir at law, and therefore entitled to the whole legacy of himself and the said Lewis." "And the petitioner further says, that he alleges as a breach of the condition of the said bond of the said W. J. Camp, that he did keep, sell all goods and chatties belonging to the estate of Lewis Hobgood, and collect the debts due said estate, and realized some thirty or forty thousand dollars, and neglected, failed and refused to pay the legacy of the said T. G. Hobgood, or any part thereof, and still doth refuse to pay the said legacy or any part thereof." "That Matthew Reade was appointed guardian for the said T. G. Hobgood and his brother Lewis Hobgood at the time the said W. J. Camp became administrator on the estate of Lewis Hobgood, and the said Matthew Reade was ever ready and willing to receive the legacy of the said T. G. Hobgood and Lewis Hobgood, but the said W. J. Camp refused, neglected and failed to pay the said legacy or any part thereof. That the said T. G. Hobgood was a minor at the time the said will was probated, and remained a minor until the 20th day of September, in the year 1871; and the said Lewis Hobgood, his brother, was a minor at the time he departed *this life, and since his death the said Matthew Reade has expressed his unwillingness to collect the assets of the said Lewis Hobgood, Jr., and to bring an action on the bond of said W. J. Camp to recover said legacy due to the said Lewis Hobgood by the will aforesaid, and absolutely refuses to collect said legacy. Plaintiff avers that by reason of the said W. J. Camp having died without paying the legacy of the said T. G. Hobgood, such being a breach of the condition of the said bond, that a perfect right of action accured to the said T. G. Hobgood for his legacy, " etc.

The declaration was demurred to as both causes of action because they were barred by the limitation act of March 16th, 1869; and moreover, as to the legacy of the deceased brother, because the right of action for the same was not in the surviving brother. The court sustained the demurrer, and dismissed the action, and this is alleged as error.

1. First was the suit in time as to the legacy of the living brother, the real plaintiff in the action, the ordinary suing but for his use? The limitation act of 1869 contains no express exception in favor of infants, but this court has ruled that in a case falling under the act, an infant has the same time to sue after attaining his majority as the act gave to persons under no disability at the date of its passage, to-wit, nine months and fifteen days. Jordan v. Ticknor, ante, 123. It is somewhat difficult to determine whether the breach of the administrator's bond is laid, in the declaration we are considering, prior to the first of June, 1865, so as to put the case under the act of 1869 (without reference to here having...