Moore v. Gill

• Decision Date: 31 July 1871
• Citation: Moore v. Gill, 43 Ga. 388 (Ga. 1871)
• Court: Georgia Supreme Court
• Parties: R. F. MOORE, guardian, plaintiff in error. v. J. M. GILL, administrator, defendant in error.

43 Ga. 388

R. F. MOORE, guardian, plaintiff in error. v. J. M. GILL, administrator, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1871.)

Estoppel.Homestead.Before Judge Johnson.Marion Superior Court.April Term, 1871.

This was a bill by Moore, guardian of Willie Baldwin, son of Charles J. Baldwin, deceased, contained the following averments: Charles J. died testate, in April, 1867, leaving real estate worth $2,440 00, and personalty worth $2,372 00.In May, 1867, Gill was appointed and qualified as his administrator, cum testamento annexo.Gill obtained an order from the Ordinary for the sale of said property, and did sell it all.Then Gill filed a creditor's bill, to the September Term, 1869, of the Superior Court of said county.In October, 1870, a decree was had under said bill, whereby Gill was required to pay to A. V. Boat-rite, in right of his wife, $1,341 39, with interest from the 17th of March, 1870, as a preferred debt, and to pay the balance of the proceeds of said sale to the other creditors pro rata.The decree directed that Gill should not pay said debt to Boatrite, until Boatrite *should give security to repay the money if said decree should be set aside.Boatrite gave the bond and Gill paid him $1,100 00.But Gill made this payment after he was fully advised that Mrs. Baldwin, for herself and three minor children, had applied for an investment of part of the cash, as a homestead for her and said minor children.This application was in the name of Gill, as administrator, and was made in November, 1870, and approved by the Ordinary in December, 1870.The Ordinary ordered Gill to invest $2,000 00, in specie, for a homestead for complainant.Before the rendition of said decree, the General Assembly had passed a bill authorizing administrators, etc., to make such investment; but this was unknown to complainant.Said sale produced, say $5,500 00, of which say, $2,400 00 is in hand.It occurred before the passage of Homestead Act.To comply with the order of the Ordinary will require all the cash in Gill\'s hands, and what he has paid to Boatrite.The prayer was that Boatrite repay Gill, and that Gill be ordered to make the investment required by the Ordinary.The Chancellor dismissed the bill for want of equity.That is assigned as error.

B. B. Hinton, for plaintiff in error.

John Peabody; M. H. Blandford, for defendant.

McCAY, Judge.

The bill in this case shows no legal reason why the solemn judgment of the...