Ross v. The Sw. R.R. Co.

• Decision Date: 31 July 1874
• Citation: 53 Ga. 514
• Parties: Albert B. Ross, administrator, et al., plaintiffs in error. v. The Southwestern Railroad Company et al., defendants in error.
• Court: Georgia Supreme Court

53 Ga. 514

Albert B. Ross, administrator, et al., plaintiffs in error. v. The Southwestern Railroad Company et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1874.)

Equity. Administrators and executors. Guardian and ward. Corporations. Railroads. Sales. Jurisdiction. Stock. New trial. Before Judge Hill. Bibb Superior Court. October Term, 1873.

Joseph Bond died in 1859, having, by his will, directed his executors and executrix, Thomas H. and William S. Moughon,, and his wife, Henrietta S., to sell the whole of his estate, both real and personal, except such as he had given to his wife for life, and to invest the proceeds, when collected, in reliable dividend-paying bonds and stock, issued in the state of Georgia, for the benefit of his children, Maria L., Mary J., Lewis, Henry C, and after-born children. Henry C. died, and Joseph was born afterwards. He gave to his wife a life-estate in his dwelling-house and lots, his horses, carriages, household and kitchen furniture, and stock of every kind in the city of Macon; and his Colawahee plantation in Dougherty county, with all the stock, provisions and appurtenances on the same.

Bond, at the time of his death, owned fifty shares of the stockof the Macon Manufacturing Company, of $100 00 each, *and one hundred and twenty-four shares of stock of the Macon Gas Light Company, of $25 00 each. Mrs. Bondclaimed that this stock passed to her for life, under the will, as "stock" in Macon, and so it was ruled and decreed by the chancellor on her application.

The executors named qualified, sold the property as directed, and from the proceeds, when collected, among other things, invested, on the 7th January, 1861, in five hundred and thirty-six shares, and on the 18th June, 1861, in fifty other shares of the capital stock of the Southwestern Railroad Company, and had certificates or script for such stock issued to them as "T. H. and W. S. Moughon, executors, and Mrs. H. S. Bond, executrix, of the estate of Joseph Bond, deceased." And on the 4th March, 1864, W. S. Moughon, then the only acting executor, (Thomas H. having died, and Mrs. Bond married to Charles L. Nelson,) invested in fifteen other shares of the same company, taking certificate in his name as executor of the estate, making in all six hundred and one shares of Southwestern Railroad stock that he then held as such executor, for the benefit of Bond's children under his will.

Charles L. Nelson, in the latter part of 1865, or first of 1866, with his wife, who carried with her her three youngest children, to-wit: Mary J., Lewis and Joseph Bond, removed to and settled in the city of New York. In September of 1866, she visited Macon in the interest of her said three younger children, she and her oldest daughter, Maria L., who had intermarried with J. F. Nelson, having been fully settled with, and finding the executor having their whole estate in his hands, was dissipated in his habits, mismanaging and wasting the same, insolvent and largely indebted to the estate, after consultation with her attorneys, the Messrs. Nisbets, who were also the attorneys of the estate, as they had been of her husband at his death, filed a bill in equity against him, as such executor, in behalf of herself, her husband and her four children, for general account and settlement, also for injunction against further use, waste, sale, etc. This bill, being sanctioned, was abandoned on consultation with *Moughon, and a new bill by him against Mrs. Nelson, as guardian of the three minor children, she having in the meantime been appointed their general guardian by the surrogate of the city, county and state of New York, also against herself and her husband, individually, her husband as administrator to J. F. Nelson, who was then dead, and Maria L., the other child. This bill was returnable to the October term, 1867, of Bibb superior court, then in session, service duly acknowledged by Charles L. Nelson, as the attorney in fact of Mrs. Nelson, and as guardian of the children of Maria L and for himself, and as administrator. It was also answered by him, individually, and in his representative character, and by the Nisbets, as the attorneys of all the defendants. And on said bill so served and answered, a consent decree was rendered during the same term, whereby it was decreed that Mrs. Nelson and her oldest daughter had been fully set-tled with; that the entire balance of the estate in the hands of the executor, (saying nothing of that property in which Mrs. H. S. Nelson had a life-estate) consisting of the uncollected promissory notes for sale of property, amounting to about $100,000 00, a note on F. K. Wright for principal sum of about $15,000 00, secured by a mortgage on the Royston place, a large and valuable plantation in Dougherty county; stocks and bonds, the results of investments by the executors, amounting to upwards of $150,000 00, including the six hundred and one shares of the capital stock of the Southwestern Railroad Company, were the property of the three minor children, Mary J., Lewis and Joseph Bond, and that the executors should turn them over to the Messrs. Nisbets, to pay fees and expenses of that proceeding; a debt due I. C. Plant, for testator\'s monument, and then to Henrietta S. Nelson, as guardian for her said wards. In addition to this, William S. Moughon, the executor, independently of what he may have wasted of the estate, was indebted to the estate by note, in the sum of $124,000 00, for purchases at the executor\'s sale of negroes and other property. This note he was utterly unable to pay, but being possessed of a large and valuable *plantation in Dougherty county, known as the Mud Creek place, with twenty-five mules thereon, he proposed to surrender that plantation and mules, which was about all the unincumbered property that he owned, in payment and discharge of his debt to the estate, and it was decreed, that the Mud Creek place and the mules go to Mrs. Nelson, as guardian of these three wards.

This decree was fully executed, and all the property, bonds and stock, except the uncollected promissory notes, turned over and fully transferred to Mrs. Nelsop, as such guardian.

Colonel R. K. Hines, of Dougherty county, was then appointed special guardian for that county, for these three children, to sell the Mud Creek plantation for their benefit, which he did by proper authority, on 6th December, 1869, to Benjamin H. Hill, at the price of $29,750 00, one-half paid in cash, and Hill's non-negotiable note for the other half, given at twelve months from date. The cash received and note was paid over to the New York guardian, less expense of guardianship and sale. The six hundred and one shares of Southwestern railroad stock was transferred by W. S. Moughon, as executor on the 20th December, 1867, after decree, to Henrietta S. Nelson, guardian of Mary J., Lewis and Joseph Bond, and a new certificate of stock issued to her by that company for the same.

Mrs. Nelson, afterwards, in New York, sold this stock to Moses Taylor, president of the National City Bank of New York, and delivered to him the scrip therefor, indorsed as follows:

"I authorize T. M. Cunningham, Esq., cashier, or William M. Wadley, president, to transfer the within shares to Moses Taylor, president. Henrietta S. Nelson,

"Guardian of Mary Jane, Lewis and Joseph Bond." Cunningham was the cashier, and Mr. Wadley the president, of the Central Railroad Bank at Savannah, where the Southwestern Railroad kept a stock book for transfers of stock andpayment of dividends for convenience of stockholders, and this *was the usual authorization to the officers for the making of transfers on such books.

The company declining to allow the transfer on this showing, an order was procured by Mrs. Nelson, as guardian, from the supreme court of New York, autorizing the sale, and an order from the ordinary of Bibb, ratifying and approving said sale, also approved by Judge Cole, as chancellor and judge of the superior courts of the Macon Circuit and Bibb county. The company still refusing to allow the transfer made on its books, Mrs. Nelson applied by bill in equity to the superior court of Bibb, against the Southwestern Railroad to compel that company to make the transfer. This bill being dismissed on demurrer, Moses Taylor, president of the National City Bank of New York, the purchaser, filed his bill to the same court against the same company to compel the transfer, his counsel being the Messrs. Nisbets, who were employed for him by W. B. Johnston. After the transfers were effected, the Central Railroad paid their fee for this service. In the body of the bill, Moses Taylor is stated to be the complainant; this was from inadvertance of the pleader, as the bill was backed as in favor of Taylor, as president. The defendant so answered and so the decree was taken, it being well understood on all hands that the bank, and not Taylor, individually, was the purchaser.

This bill being served and answered, came on for trial, and after solemn argument and full consideration, the court decreed and so directed that the transfer should be made, and it was done accordingly, and Moses Taylor, president of said bank, in the meantime having sold said stock to the Central Railroad, he immediately transferred the whole stock to that company.

In December, 1860, Mary J., the oldest of the three children, intermarried with James W. Lockett. And in April, 1870, said Lockett and wife sued out an attachment against said Henrietta S. Nelson, as guardian of said Mary Jane, and her husband, Charles L., which was levied on the house andlots in Macon, the gas and manufacturing stock, the Colawahee *plantation in Dougherty county, in which Mrs. Nelson had a life-estate, and Hill and Hines & Hobbs were garnished. The sum claimed by Lockett and wife was $50,000 00, as due on account of his said wife, Mary. The same property had been attached by other creditors as the property...