Lowery v. Idelson

• Decision Date: 26 June 1903
• Citation: 45 S.E. 51,117 Ga. 778
• Parties: LOWERY et al. v. IDELSON et al.
• Court: Georgia Supreme Court

45 S.E. 51

117 Ga. 778

LOWERY et al.

v.IDELSON et al.

Supreme Court of Georgia.

June 26, 1903.

NEW TRIAL—AMENDMENT TO PETITION—ADMINISTRATRIX'S SALE—PURCHASE BY HUSBAND—ACTION BY HEIRS—RIGHTS OF ADMINISTRATRIX.

1. Exception to the allowance of an amendment to a petition cannot properly be made in a motion for a new trial. Nor can an exception of this nature in a motion for a new trial be made effective by an assignment of error in the bill of exceptions, when it was not sued out within due time after the ruling complained of.

2. A purchase by a husband at a sale had by his wife as administratrix is voidable at the election of heirs of the intestate, who move within a reasonable time after the sale to set the same aside.

2. See Executors and Administrators, vol. 22, Cent. Dig. §§ 6821, 1501.

3. Where in a suit of this nature, brought by the heirs against the administratrix and her husband, the plaintiffs in the original petition pray that the deed to the husband be canceled, and, by amendment duly allowed over objection, pray that they be allowed to recover the rental value of the land sold, from the date of the sale, and also the value of the personal property sold, with interest, and a verdict and decree are rendered in accordance with these prayers, the administratrix will not be allowed to complain of such verdict and decree, when they were warranted by the evidence, and when she filed no plea setting up any reason why it was necessary for her to longer retain the property of the estate in her possession. If the plaintiffs were not entitled in such a suit to the relief prayed for in the amendment, the order allowing the amendment, unless excepted to in due time and in the proper manner, concluded the defendants on the plaintiffs' right to the relief sought; and if there were debts due by the estate, or any other reason existed why the property should not be distributed by the court among the heirs at law, the administratrix should have pleaded and proved it.

(Syllabus by the Court.)

Error from Superior Court, Laurens County; D. M. Roberts, Judge.

Action by Florence Idelson and others against Isaiah Lowery and another. Judgment for plaintiffs, and defendants bring error. Affirmed.

Peyton L. Wade, for plaintiffs in error.

E. D. Graham, for defendants in error.

COBB, J. Mrs. Lowery was administratrix of the estate of T. N. Miller. Having obtained authority from the court of ordinary to sell land and personal property belonging to the estate, she offered such prop erty for sale at public outcry. All of the property offered for sale was purchased by the husband of the administratrix, and he afterwards sold to others some of the personal property. Suit was brought against the administratrix and her husband by the mother of the decedent in her own behalf as an heir at law, and also as guardian of her three minor children, who were the brother and sisters of the decedent. A verdict was directed in favor of the plaintiffs, and the defendants excepted to the overruling of their motion for a new trial.

1. Error is assigned, both in the bill of exceptions and in the motion for a new trial, upon the allowance of an amendment to the plaintiffs' petition. No exceptions pendente were filed complaining of the allowance of the amendment. As the bill of exceptions was not sued out in time to bring this ruling of the court under review, and as it cannot be made the subject-matter of a ground of a motion for a new trial, the assignment of error cannot be considered. Bullock v. Cordele Sash Co., 114 Ga. 627 (2), 40 S. E. 734.

2. The controlling question in the case is whether a purchase by the husband of an administratrix, at a public sale of the property of her intestate had under authority of the court of ordinary regularly and duly granted, is valid as against heirs who move within a reasonable time after the sale to set the same aside, when the husband has purchased for himself and paid a fair price, and the purchase is free from any fraud or collusion between him and the administratrix. Of course, it is well settled that a purchase by an executor, administrator, or other trustee at his own sale is voidable at the election of the heirs or others interested, if they move within a reasonable time after the sale to set the same aside. Moore v. Carey, 116 Ga. 28, 42 S. E. 258. In Reed v. Aubrey, 91 Ga. 435, 17 S. E. 1022, 44 Am. St. Rep. 49, it was held that an agent to sell land could not sell it to his wife; Mr. Justice Lumpkin using in the opinion this language: "The principle which renders an agent incompetent to purchase from himself renders him alike incompetent to sell to his wife. As he is forbidden to purchase that which another has intrusted him to sell, for the reason that the temptation to take care of himself will override the duty he owes to his principal, it requires no great amount of reflection to perceive that he will ordinarily be influenced by the same motive in selling to his wife. It is hardly possible for a wife to make an advantageous contract of any kind without more or less benefit therefrom resulting to the husband. In this sense, as in many others, 'the twain are one flesh, ' and the selfishness and desire for gain common to most mortals makes it expedient to prevent a husband...