Head v. Bridges
| Decision Date | 30 September 1881 |
| Parties | Head. vs. Bridges et al. |
| Court | Georgia Supreme Court |
Ordinary. Jurisdiction. Judgments. Administrators and Executors. Before Judge LAWSON. Jasper Superior Court. April Term, 1881.
Reported in the decision,
A. D. Hammond; W. A. Lofton; John I. Hall, for plaintiff in error Berner & Turner; F. Jordan, for defendants.
Bennett Bridges died testate, in April, 1865, leaving his wife Mary Ann Bridges, and William H. Head to execute his will. They both qualified. The undisputed facts are that he died free from debt; that upon application to the ordinary of the county an order was passed authorizing the sale of some portions of the surplus provisions for the expenses of the estate. That the personal property on hand at the death of the testator, except the year's support, that which was given by special legacy to the widow, the notes, cotton and cotton seed, was sold December 13th, 1865, for the sum of $2,519.41.
That the deceased had two notes on William Johnson for about $800.00, made before the war. One on Jane M. Holland, for $1,737.95, and one on H. B. Ridley, for $31.00. He had also on hand seventeen bales of cotton, worth $1,875.69, 390 bushels cotton seed, of the value of $39.00, making in the aggregate $6,913.75, all of which went into the hands of the executors.
That on the sixth day of December, 1868, the defendant, Head, tendered to the ordinary of the county his resignation as executor, and on the 15th of the same month gave his promissory note to Mrs. Bridges for the sum of $1,539.18, in full of his liability to the estate. And that on the same last mentioned day he took from Mrs. Bridges a receipt in full of all assets for which he was liable to the estate. To the foregoing statement of facts the parties agree.
On the first Monday in March, 1879, Mrs. Bridges and Wm. H. Head, as the executrix and executor, were cited to appear before the ordinary for a settlement of their accounts, and after a trial before him the case was carried to the appeal upon the application of Wm. H. Head, who was dissatisfied with the judgment pronounced.
An auditor having been appointed by order of the superior court, he reported, after an investigation of the matters submitted to him, that the executors were liable:
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|For sales of personal property |$2,519.41|
|-------------------------------------------------------------------|---------|
|For the two promissory notes on Wm. Johnson |700.00 |
|-------------------------------------------------------------------|---------|
|For the note on Jane M. Holland |1, 542.75|
|-------------------------------------------------------------------|---------|
|For four-fifths of $600.00 worth of cotton belonging to the estate | |
|of deceased, and invested in a house and lot purchased from Wm. H. | |
|Head by Mrs. Bridges for her in- | |
|-------------------------------------------------------------------|---------|
|-------------------------------------------------------------------|---------|
|-------------------------------------------------------------------|---------|
|480.00 | |
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To these amounts were added interest, which after deducting the one-fifth belonging to Mrs. Bridges, left due $7,770.47 belonging to the other legatees. In addition to the foregoing joint liability, he reported as due from Wm. H. Head, individually, $132.80.
To this report the legatees excepted because the auditor had not found four-fifths of the house and lot at its purchase price of $2,400.00, as belonging to the estate, the same having been paid for of out the money of the estate.
The defendant, Head, for himself also, filed exceptions to the finding of the auditor as to his liability for the sale of the personal property, which, with its interest, amounted to the sum of $5,017.67. Also to his liability for the sum of $700.00 on the notes of Wm. Johnson, together with the accumulated interest, amounting to $1,248.53.
Exceptions were also filed to the finding wherein he Was held liable for $2,526.64, being amount of the Johnson fi. fa. which had been taken in settlement of the debt on Jane M. Holland, and which had been lost. And further to the $736.20 found against him on the house and lot, as also to the finding of the $55.29 on the Ridley note.
Amendments were made more specifically setting out the grounds of exception to the liability of the defendant on the sale of personal property, and the settlement of the Johnson promissory notes.
On the trial of the case before the jury they found the defendants liable on the amount of the sale bill, $4,147, 87.
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|On the Head note, (meaning the Johnson notes), |$1,248.52|
|------------------------------------------------------------|---------|
|Loss on the Johnson fi.fa., (Jane Holland note), |2, 326.64|
|------------------------------------------------------------|---------|
|House and lot, (bought by Mrs. Bridges of Head), |4, 060.66|
|------------------------------------------------------------|---------|
|Less one-fifth, Mrs. Bridges' share, principal and interest,|2, 396 73|
|------------------------------------------------------------|---------|
|Leaving owing |9, 586.96|
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The defendant, Head, moved for a new trial, and the same being refused, he excepted.
1. The first question made by the record is whether the judge erred in ruling out the application made by the executor, Head, to be discharged from his trust as executor, and the order of the ordinary passed in reference thereto.
The application and the order, which constituted the entire proceedings, were tendered together, and were as follows:
" Georgia—Jasper county.
To the honorable court of ordinary, December term, 1868:
The petition of W. H. Head, of aid county, showeth that heretofore, to-wit: on the dayo--of--Bridges, of said county, testate, that in and pursuant to the will of said deceased, petitioner was nominated and qualified executor thereto; that the said petitioner intends soon to move from said county and desires, therefore, to resign his trust as executor as aforesaid; that Mrs. Bridges, widow and relic of said deceased, who was nominated and qualified as co-executor to said will, is a suitable person, qualified and entitled to, and willing to, accept the trust; wherefore, your petitioner prays a citation to issue to said Bridges' widow, etc., and the next of kin of said testator, requiring them to appear at next regular term of said court on the first Monday in December, inst., to show cause why an order should not be granted discharging petitioner from said trust, and prays an order in the sound discretion of the court discharging him as aforesaid.
Lofton & Hutchison,
A ttorneys for petitioner.''
"Georgia—Jasper county.
Court of Ordinary, December term, 1868.
December 6th, 1868.
The application shows upon its face that it was drawn in December, 1868, certainly, and almost quite as certainly on the very day the court met. Not only so, but it shows that no one had any notice or was cited to appear except Mrs. Bridges, the co-executrix of the applicant. These facts appearing on the face of the record itself was no the whole proceeding a mere nullity, and should it not have been so treated by the court?
That the application was made in December, 1868, appears from the very words used in praying the citation re quiring Mrs. Bridges, widow, etc., and the next of kin to appear at the next regular term of said court on the first Monday in December instant to show cause, etc. To say that instant, in the connection used, meant anything other than the present or current month, would be to charge a degree of ignorance and stupidity to the counsel preparing the application unworthy the humblest member of the profession, or else to stultify ourselves in defining the meaning of one of our plainest English words.
The order of discharge was passed on the 6th day of December, 1868, and it was therefore an impossibility to have given the ten days' notice required by law.
Again, the order of discharge recites that, " whereas, the said Mary A. Bridges, widow, etc., and next of kin oftestator aforesaid, has been cited to appear, " etc., and no objection being made, the resignation was allowed.
This recital shows that Mrs. Bridges had been cited to appear, but when, how, or by whom, does not appear that we can find in the record. But it is insisted that the...
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Huff v. State, 41627
...of the principle invoked, without requiring any addition to make it perfect, a failure to give it will not require a new trial. Head v. Bridges, 67 Ga. 227(4).' Cates v. Harris, 217 Ga. 801, 802, 125 S.E.2d 649, It is contended that this request was tendered in connection with a theory of d......
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Wheeler v. Wheeler
...for a new trial as amended is without merit. Authorities cited by plaintiff in error, other than those referred to in the opinion. Head v. Bridges, 67 Ga. 227; Jones v. Smith, 120 Ga. 642, 48 S.E. 134; Code, §§ 24-2104; 24-1901; 24-2101; 24-2105; 24-2109; 113-1207; 113-1501; 113-1504; 113-2......
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Weaver v. Carter
... ... Hope v. Mayor, etc., 72 Ga. 249; Logan v ... Goodall, 42 Ga. 95; Sanford v. Sanford, 58 Ga ... 261; Barnes v. Underwood, 54 Ga. 87; Head v ... Bridges, 67 Ga. 227; Ingram v. Little, 14 Ga ... 173; Brown v. Colquitt, 73 Ga. 59; Johnson v ... Mayor, etc., 46 Ga. 80, and Railroad ... ...
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White v. Roper
...was therefore conclusive and binding upon all parties concerned, unless it should be set aside in some appropriate proceeding. Head v. Bridges, 67 Ga. 227; Jones Smith, 120 Ga. 642 (2), 48 S.E. 134; Wicker v. Howard, 126 Ga. 119, 54 S.E. 821. It thus appears that, regardless of whether a fr......