Pass v. Pass
| Decision Date | 24 August 1896 |
| Citation | 25 S.E. 752,98 Ga. 791 |
| Parties | PASS. v. PASS et al. |
| Court | Georgia Supreme Court |
Fraudulent Discharge of Executor—Collateral Attack.
1. A discharge obtained by an executor by means of a fraud practiced upon the legatees or the ordinary is void; and, while it may be set aside on motion in the court of ordinary upon proof of the fraud, it may also be collaterally attacked as a nullity by an equitable petition in the superior court.
2. The court erred in sustaining the demurrer to the plaintiff's declaration.
(Syllabus by the Court.)
Error from superior court, Hall county; J. J. Kimsey, Judge.
Action by R. H. Pass against Aaron Pass and another. From a judgment sustaining a demurrer to the declaration, plaintiff brings error. Reversed.
The following is the official report: A general demurrer to the petition of R. H Pass against Aaron Pass and A. D. Candler was sustained, and plaintiff excepted. it appears that Jordan Whelchel left a will, dated July 20, 1880, in which he bequeathed to his sister lots of land 147 and 148, in the Tenth district of Hall county, during her life or widowhood, with remainder in fee to her children, nephews and nieces of testator, in equal shares. By another item he gave the residue of his estate, real and personal, subject to the payment of his debts, expenses of last sickness, and of funeral and monument, to said nephews and nieces, five in number, including Richard Pass, Aaron Pass, and John Marion Pass; and the last two were appointed executors, with the requirement that, upon the qualification of each, he give bond and security as in cases of administrators. On October 1, 1885, Aaron Pass, as principal, and A. D. Candler, as security, executed a bond to the ordinary in the sum of $18,000, conditioned to be void if Aaron Pass, executor, do make a true and perfect inventory of all the estate of Jordan Whelchel, deceased, which has or shall come into his hands, possession, or knowledge as executor, or of any person for him, and the same so made shall exhibit to the ordinary when he shall be hereunto requested, and such goods, credits, lands, and tenements shall well and truly administer according to law, and shall make a just and true account of his actings and doings according to law when he shall be thereunto required by the court, and the balance shall deliver and pay to such person or persons as are or may be entitled to the same by law, etc. Plaintiff alleges that Aaron Pass, executor, has not made a true and perfect inventory of all the estate of said deceased that came into his hands, and exhibited the same to the ordinary as required by law; nor has he well and truly administered the same according to law; nor has he made a just and true account of his actings and doings according to law; nor has he delivered and paid to the persons who are entitled to the same under the will, and as under the law he should have done. He failed to make any inventory, or any return of, or to account for, one-third interest in lots of land 136, 137, and 125 in the Tenth district of Hall county, of the value of $550, and a number of notes on sundry persons (giving the names and amounts), aggregating $2,157.23, and including one for $800 on Mrs. Aaron Pass, wife of the executor, all of which were or should have been collected by him. The note on his wife was well secured by a deed to a valuable piece of land, and no part of said claim has at any time been accounted for, and is now or should be in the hands of said executor. On or about May 6, 1890, plaintiff, with the other legatees under the will, had a settlement with the executors upon the basis of $6,824.80, said executor fraudulently representing said amount to be the net sum of said estate, concealing the true condition and net amount for distribution among the legatees. The true amount that should have been accounted for and distributed among the lega-tees at that time was not less than $9,000, which true condition was so kept concealed and hidden by the executors from plaintiff that it was impossible for him to find out and know, nor did he find out and know, of the fraud attempted to be perpetrated upon him for a long time afterwards. The executors having taken receipts in full from the legatees at the time of said settlement, when they found out the fraud, and tried to get them to correct it, and to settle the estate...
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