Mcbride v. Hunter

• Decision Date: 28 February 1880
• Citation: 64 Ga. 656
• Parties: McBride, administrator. v. Hunter.
• Court: Georgia Supreme Court

64 Ga. 656

McBride, administrator. v. Hunter.

Supreme Court of the State of Georgia

(February Term, 1880.)

Evidence. Principal and security. Administrators and executors. Verdict. Practice in the Superior Court. Practice in the Supreme Court. Before Judge Johnson. Jefferson Superior Court. November Adjourned Term, 1879.

To the report contained in the decision, it is only necessary to add that the defendant moved for a new trial on the following grounds:

(l.)Because the court erred in holding that the note made by Thomas A. McBride, principal, and R. B. McBride, security, was barred as against the security by the statute of limitations when the payment was made thereon by defendant, and in ruling out said note and the receipt for said payment as evidence before the jury.

(2.) Because the court erred in ruling as follows: Defendant by his counsel offered in evidence to the jury his return and vouchers, and the original notes upon which he had made payments, when counsel for plaintiff objected to their admission as evidence to the jury, which objection was sustained by the court as to accounts not of preferred dignity (the defendant, having testified that at the time of his decedent's death there were outstanding notes against him sufficient to absorb all the assets of his estate)—the court holding that the payment by defendant of a portion of said accounts against said estate was an act of maladministration which inured to the benefit of plaintiff and other account creditors, and that the amount so paid on accounts by defendant is a fund still in his hands for administration, and which should be provided pro rata by defendant.

*(3.) Because the court erred in ruling that it would not allow defendant his commissions, and that he must be made liable for them.

(4.) Because the court erred in ruling that the account of Bothwell & Brother could not be admitted to share pro rata in the funds paid on accounts.

(5.) Because the verdict was contrary to law and evidence.

The motion was overruled, and defendant excepted.

R. W. CarswELL, for plaintiff in error.

Edward Hunter, by brief, for defendant.

Jackson, Justice.

This case came before the superior court on an appeal from the county court, when the jury, under the charge of the presiding judge, returned a verdict for the plaintiff for the amount of the account sued on. The defendant was sued as administrator of his father's estate on an account against the decedent in his lifetime, and the parties went to trial on the issue made by the plea of plene administravit filed by the defendant; and the motion for a new trial is grounded on complaints made in respect to the rulings of the court.

The following summary of the facts and rulings of the court made by the counsel for the defendant in error when compared with the record of the cause are found to be substantially correct, and cover the points made in the motion for a new trial:

Thomas A. McBride, administrator, on March 10th, 1876, paid A. R. Roberts $157.19 on a note of which the following is a copy. See voucher No. 26.

"One day after date we or either of us promise to pay to A. R. Roberts, the sum of two hundred and thirty-two dollars for value received.

January 1st, 1866. T. A. McBride,

R. B. McBride, Security."

*Credit. "Received on the within note $51.09 by account from Samuel J. Gordan, administrator of T. A. McBride, deceased. January 1st, 1872. A.R. Roberts."

"Received of T. A. McBride, administrator of estate of R. B. McBride, deceased, one hundred and fifty-seven dollars, nineteen and three-fifths cents on the original note of which the above is a copy, and said administrator is hereby acquitted of all personal liability to me on account of said demand against said estate. This March 10th, 1876. Carswell & Denny,

Attorneys for A. R. Roberts."

When plaintiff in error offered this note and receipt in evidence, the defendant in error objected to them on the ground that the note was barred by the statute of limitations and the administrator had no right to make the payment. The courtsustained the objection and ruled out the evidence, when plaintiff in error excepted.

The plaintiff in error offered in evidence the following notes and receipts, to-wit:

Voucher No. 22. "One day after date I promise to pay to James Gordan, or bearer, the sum of four hundred and twenty-three dollars and thirteen cents for value received. This 1st day of January, 1872.

R. B. McBride."

Credit. "Paid on within note one hundred and forty dollars. January 1st, 1876."

Receipt. "Received of T. A. McBride, administrator of R. B. McBride, deceased, two hundred and forty-six dollars, eighty-two and three-fifths cents on the original note of which the above is a copy, and said administrator is hereby acquitted of all personal liability to me on account of said demand against said estate. This March 9th, 1876. James Gordan."

Voucher No. 27.

"Augusta, Ga, February 20th, 1873.

"$225.00. On the first day of January next I promise to pay Both-well Brothers, or order, two hundred and twenty-five dollars for value received. R. B. McBride."

"Louisville, Ga., March 16th, 1876.

"Received of T. A. McBride, administrator of the estate of R. B. McBride, one hundred and eighteen dollars and six cents on the original note of which the above is a copy, and the said T. A. McBride is hereby acquitted personally and as administrator of all liability to me *on account of said demand against said estate, so far as any and all assets which are now, or may have heretofore, passed into his hands, reserving to ourselves however, the right to recover the balance that may be due on said note, and the account that we hold against said estate, from any assets of said estate that may hereafter pass into his hands, or to which said estate may be entitled by reason of the reversionary interest in the widow's dower.

Thomas S. Bothwell,

Attorney for Bothwell Brothers."

Voucher No. 29.

"On or before the first day of November next, I promise to pay to F. A. Sinquefield & Co, or order, two hundred and fifty-six dollars and sixty-four cents, for value received. April 17th, 1874.

R. B. McBride."

"Received on within note, October 22d, 1874, twenty-six dollars."

"Received on the within note sixty-seven dollars and six cents. December 10th, 1874."

"Received of T. A. McBride. administrator of R. B. McBride, deceased, thirty-nine dollars and seventeen cents on the original note of which the above is a copy; and said administrator is hereby acquitted of all personal liability to me on account of said demand against said estate. March 10th, 1876. F. A. Sinquefield."

Voucher No. 30.

"One day after date I promise to pay to Sarah A. Mountain two hundred and eighty-eight dollars for value received. January 1st, 1861.

R. B. McBride."

Credit. "Paid on within note one hundred dollars. February 15th, 1870."

"Received of T. A. McBride, administrator of R. B. McBride, deceased, one hundred and nineteen dollars and forty-seven cents on the original note of which the above is a copy; and said administrator is hereby acquitted of all personal liability to me on account of said demand against said estate. March 10th, 1876.

S. A. Mountain." The defendant in error objected to the admission of these notes in evidence to show outstanding notes against said estate, on the ground that said note creditors were estopped by their receipts to the administrator, so far as other bona fide ...