Monroe v. Simmons

• Decision Date: 20 December 1890
• Citation: 86 Ga. 344,12 S.E. 643
• Parties: Monroe. v. Simmons.
• Court: Georgia Supreme Court

12 S.E. 643

86 Ga. 344

Monroe.

v.Simmons.

Supreme Court of Georgia.

Dec. 20, 1890.

Limitations—Infancy—When Statute Begins to Hun.

1. Act Ga. March 16, 1869, declaring that all causes of action accrued prior to June 1, 1865, should be barred unless suit was brought by January 1, 1870, does not apply to an heir's right of action against the administrator, when the heir was an infant, and had no guardian until 1866, as his right of action did not accrue until such appointment.

2. Under Code Ga. § 2926, providing that infants shall be entitled to the same time after the disability is removed as is prescribed for other people, the statute does not run during the infancy of one whose guardian fails to sue the administrator, upon the settlement of the estate, for the infant's portion.

Error from superior court, Pickens county; Gober, Judge.

J. A. Baker, for plaintiff in error.

C.D. Phillips and W. H. Simmons, for defendant in error.

Blandford, J. This case in the court below was referred to an auditor, who held, and so reported to the court, that the plaintiff in error (who was the plaintiff in the court below) was barred of his right to recover, under the act of the 16th of March, 1869, which required all causes of action which originated or accrued prior to the 1st of June, 1865, to be brought by the 1st day of January, 1870, or the same should be thereafter barred. The case is this: P. D. Monroe, the father of the plaintiff in error, died, intestate, "in December, 1857, or January or February, 1858, " leaving, surviving him, his widow, a daughter, a son, and the plaintiff in error. T. L. Monroe took out letters of administration upon his estate, which was valued at about $4,000, at the June term, 1858, of the court of ordinary of Pickens county, giving bond and qualifying as such administrator. Afterwards one of the sureties on the administrator's bond applied to the ordinary to be relieved, and at the July term, 1862, was discharged, the administrator giving a new bond, with James Simmons as his surety. It further appears that T. D. Monroe, the plaintiff in error, and one of the heirs of P. D. Monroe, deceased, was born in the latter part of the year 1857, and therefore never arrived at age until 1878. The administrator sold the estate of P. D. Monroe, deceased, and settled with all the heirs at law except the plaintiff in error, who was then a minor; left the state of Georgia prior to the year 1865, taking with him all the money realized from the estate of the intestate, except that which had been distributed among the widow and other heirs at law, and has since resided outside of this state. In 1866, a guardian was appointed for the plaintiff in error, but said guardian never received anything from the administrator on account of his ward's interest in said estate. The ward became of age in 1878, at which time his guardian died. He brought this bill on August 29, 1887, against Simmons, the surety of the administrator, alleging that the administrator still resided outside of the state, and he and his surety failed and still fail and refuse to account and pay over to him his distributive share of said estate. The question in the case, therefore, is whether the auditor was right in holding that the...