Reese v. Burts
| Decision Date | 31 December 1869 |
| Citation | 39 Ga. 565 |
| Court | Georgia Supreme Court |
| Parties | RIVERS REESE, plaintiff in error. v. D. H. BURTS, administrator, defendant in error. |
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In February, 1867, he had a decree, that he recover of the defendant, by levy and sale, "$1,408 80, with interest and costs, which shall be recovered by the enforcement of the vendor\'s lien, set out in said case, on the following described lands: * * * provided, nevertheless, that the enforcement of said vendor\'s lien shall in no way affect the right of said Dorothy Jones to dower in said lands, and so much and such parcels and tracts thereof as have been laid off and assigned to said Dorothy Jones, is entirely free from the force of said lien." The Clerk issued a fi. fa., directing the officers to make said sums and costs out of the lands belonging to the estate of said husband, describing them just as they were described in said decree, and taking no notice of the reservation as to dower, though Mrs. Jones was then living. No levy was made till Mrs. Jones died. Then, and before time to have a regular administrator of her estate appointed, said fi. fa. was levied on all of said land. A temporary administrator was appointed, and filed an oath of illegality against said fi. fa., upon the grounds that the fi. fa. should have issued against all the estate of Jones, and not against said lands only, and because it did not follow the decree, in that it took no notice of the reservation of the dower lands, and because the estate was insolvent, and this fi. fa. should only be paid pro rata with other debts, after due administration.
The sheriff did not sell, but returned the papers to Court. *Meanwhile, D. H. Burts had become the regular administrator of Mrs. Jones, and was, by order, made a party to said suit.
Reese's counsel moved to dismiss the illegality, because it could not be taken by a temporary administrator, and because Mrs. Jones, having died before the levy, the failure to notice her dower in the fi. fa. was an immaterial variance. The Court overruled the motion. After argument, he sustained the oath of illegality, on the ground of Variance between the decree and the fi. fa.
The refusal to dismiss the proceeding, and sustaining the illegality, are assigned as error.
E. G. Raiford, for plaintiff in error, cited, as to the powers of temporary administrators, 2 Bouy. Ins., 146; Irwin's Code, sees. 277, 2451-2-3; 10th Geo. R., 77; 37th, 15.
D. H. Burts, for defendant.
1. We see no reason why the temporary administrator is not, in this State, bound to protect the real as well as the personal estate of the deceased from illegal...
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Hutcheson Mfg. Co v. Chandler
...regard to the institution of suits, see the following: Frazier v. Georgia Railroad & Banking Co., 101 Ga. 77 (1), 28 S. E. 662; Reese v. Burts, 39 Ga. 565 (1); Mason v. Atlanta Fire Co., 70 Ga. 604 (1), 607, 48 Am. Rep. 585; Louisville & Nashville Railroad Co. v. Chaffin, 84 Ga. 519 (1), 11......
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Wilson v. Pollard
... ... That such temporary ... administrator is authorized to sue on behalf of the estate ... cannot be denied. Code, § 113-1511; Reese v. Burts, ... 39 Ga. 565; Mason v. Atlanta Fire Co., 70 Ga. 604, ... 48 Am.Rep. 585; Pollock v. Cox, 108 Ga. 430, 34 S.E ... 213. The word ... ...
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Hutcheson Mfg. Co. v. Chandler
...in regard to the institution of suits, see the following: Frazier v. Georgia Railroad & Banking Co., 101 Ga. 77 (1), 28 S.E. 662; Reese v. Burts, 39 Ga. 565 (1); Mason Atlanta Fire Co., 70 Ga. 604 (1), 607, 48 Am.Rep. 585; Louisville & Nashville Railroad Co. v. Chaffin, 84 Ga. 519 (1), 11 S......
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Barfield v. Miller
...W. 1108. In the case of Barfield v. Hartley, 108 Ga. 435, 33 S. E. 1010, 1011, the Supreme Court of Georgia said: "This court, in Reese v. Burts, 39 Ga. 565, distinctly ruled that it was the right of a temporary administrator to file an of illegality to an execution proceeding to sell his i......