Poullain v. Brown

• Decision Date: 16 September 1889
• Parties: POULLAIN et al. v. BROWN.
• Court: Georgia Supreme Court

9 S.E. 1131

82 Ga. 412

POULLAIN et al. v. BROWN.

Supreme Court of Georgia

September 16, 1889

Error from superior court, Greene county; JENKINS, Judge.

Billups & McDaniel, D. B. Sanford, C. Heard, Foster & Butler, and W H. Branch, for plaintiffs in error.

H. T. & H. G. Lewis, for defendant in error.

SIMMONS J.

James L. Brown, administrator de bonis non, etc., of Dawson, brought his action against Thomas N. Poullain, as surety on the administrator's bond of Seabrook, and also brought another action against Poullain and Ann C. Davis, administratrix of her husband, as sureties on another administrator's bond of Seabrook. Both cases, involving the same issues, were consolidated in the court below. The plaintiff recovered, and the defendants made a motion for a new trial on the several grounds set out therein, which motion was overruled, and they excepted.

The main ground relied on by counsel for the plaintiffs in error for reversal of the court below was alleged error in the following charge of the court to the jury, and the exclusion of certain evidence hereinafter detailed: "The court charges you that an administrator has, by law, no authority to ship or remove beyond the limits of this state property in his hands belonging to the estate of his testator or intestate, as the case may be, and such act, if committed would be illegal; and if, in consequence of such act, the property of the estate is damaged, it would amount to a devastavit, for which the administrator and his sureties would be liable on their bond to the extent of the damage sustained by the estate. This the court charges you to be the law applicable to all administrators in the management of estates."

It appears from the record in this case that Seabrook, the administrator, in the year 1867 or 1868 undertook to ship a certain number of bales of cotton belonging to the estate of his intestate from Albany, Ga., to Liverpool; that after the cotton had been placed on board the steamer at Albany, and the steamer had started down the river to Apalachicola, it ran upon a snag and sank, and the cotton was lost. Seabrook in his returns to the court of ordinary of Dougherty county, attached to the returns an explanation, and gave his reasons for shipping the cotton to Liverpool. These reasons, in substance, were that he thought it was for the best interest of the estate to make the shipment, because he could obtain a much better price in Liverpool than in the markets of Georgia, and that he was fearful that the cotton would be seized by the treasury agents of the general government. On the trial of the present case in the court below, Col. Billups was offered by the defendant as a witness to prove that he had attempted, about the same time, to ship cotton to Liverpool, where it was worth 51 cents per pound, and that he was led to do so by reason of danger of seizure by the United State government, and the prospect of better prices; that frequent seizures were made all through Georgia by persons claiming to be agents of the government, resulting in loss to those whose cotton was seized. This evidence was excluded by the judge, and this ruling is also complained of. Upon this state of facts the above charge was given.

1. We do not think this charge was erroneous. We think it was a correct exposition of the law of this state concerning the duties and liabilities of executors and administrators. They are quasi officers of the courts of ordinary. Their duties in regard to the sale of the property belonging to the estates of their decedents are well defined. In all cases of sales by them, except of annual crops and wild land, the mode and the means of fixing the time and place of sale are prescribed by law. If the law is followed by them in this respect, and the sale conducted fairly, they are not liable whether the property brings much or little. "Under the common law, the absolute control of the personal property of the decedent was vested in the executor or administrator, and he had the legal power to dispose of any or all of such property at discretion. He could sell the personal property either at private or public sale. If he sold at private sale, he was chargeable with the full value of the property rather than the price obtained." Schouler, Ex'rs, §§ 339-341. Our statute has changed the common law, and requires the executor or administrator to apply to the ordinary for leave to sell, which application, in the case of personal property, shall be made at least 10 days before the order is granted, and that advertisement be made of the day and time of sale. The intention of the law of this state seems to be that all sales of the property of decedents shall be public, after full notice to all parties interested therein. Annual crops, however, are exempted from these rules, and executors and administrators are allowed to send them off to market. Code,§ 2555. It is insisted by counsel for the plaintiffs in error that this cotton which was lost by the sinking of the steamer was part of an annual crop; that under this exception to the general rule, Seabrook, the administrator,...