Shine v. Wife

• Decision Date: 30 June 1860
• Parties: SHINE. vs. REDWINE AND WIFE.
• Court: Georgia Supreme Court

30 Ga. 780

SHINE. vs. REDWINE AND WIFE.

Supreme Court of the State of Georgia

JUNE TERM, 1860.

In Equity, in Twiggs Superior Court. Tried before Judge Lamar, at September Term, 1859.

This was a, bill filed by the defendants in error against the plaintiff in error, making the following allegations:

That in 1837, Robert F. Glenn died intestate in Twiggs county, leaving his widow (now Mrs. Shadrach Ware) and the present wife of complainant Redwine, his only heirs at law; that he left a large estate, consisting of lands, negroes, stock, etc., of which Shine, in January, 1838, having qualified as Glenn's administrator, possessed himself; that Shine did not administer said estate in the manner pointed out by law, nor did he make legal or true return of his actings and doings; that he caused the perishable property to be sold, and bought most of it himself, and caused at least six of the negroes to be sold, and returned them as bought by other persons, whilst, in truth, four of them, if not more, were bid off for said Shine himself, and taken by him; that said administrator has rendered no account of the lands, and has misappropriated the choses in action belonging to the estate; that several years subsequent to 1838, the said defendant without any legal authority, caused the balance of the negroes to be sold, and so managed as to become himself the purchaser for a merely nominal price, making no returns of the prices paid, nor of hire received duing the years inter-vening between Glenn\'s death, and said sale; that complainant, Redwine\'s said wife, was then a minor, and very young, having no power to secure or protect her rights, and being entirely under control of defendant until her marriage in 1856; that defendant is still in possession of said estate, especially the negroes; and their increase, which, with the interest, hire, etc., are worth $50,000.00 or other large sum; that on account of the concealment practiced by defendant, complainants are unable to discover the quantity, value or character of said estate, without resorting to defendant\'s conscience.

By an amendment, complainants further allege: That if any order of sale was ever procured by defendant, it was at an adjourned term of the Court, and before notice of intention to apply for such order had been advertised the period required by law; that said sale was not advertised as required by law, but six of the negroes were sold on the day after the order was granted, and returned by Shine as bought by one Harrison; when, in truth, five of the said negroes, at least, were bid off for said' Shine, and went at once into his possession; that until January, 1845, defendant held the balance of the negroes' as the property of said-estate, when he caused eight other negroes to be sold without giving any notice of intention to apply for an order to sell, or, in fact, obtaining an order for that purpose—no order having been granted to "sell any part of said estate since the order of April 30th, 1838, which complainants claim was functus officio after the sale first had under it; that said sale was fraudulent and void for the further reasons that the negroes were bid off by Henry Bunn for defendant (although defendant returned them as bought by Bunn for himself), and were sold for cash, and without notice, and at a time when defendant thought they would sell cheap—the creditors of the estate having been previously paid off, and no division being necessary; that complainant, Redwine's wife, had no guardian, and if a division had been necessary, a sale of said negroes was.not requisite to make it; that on the 5th day of May, 1845, defendant procured the Court of Ordinary to pass an order, which, after reciting that he had "fully administered, " and had legally published a citation for letters of dismission—no objection having been filed— ordered the clerk to grant letters of dismission, and to per-mat said Shine to retain money to pay the taxes of the estate for the year 1845; that said order of dismission was fraudulent and void, because notice of intention to apply for it was not published six months; no division had taken place; the estate had not been fully administered; no return even of said last-named sale was made until the day said order was granted, and no opportunity, therefore, had been given for parties interested to examine it.

The bill prays that said orders and the sales under them be set aside, and that defendant be brought to a full settlement with complainants; that he be decreed a trustee for complainants in respect to the property purchased by him, and be decreed to deliver up the negroes still in his possession, and to account for the present value of those he has disposed of, with hire.

The defendant, in his answer, admits that he administered on the estate of said Glenn as stated; that Mrs. Redwine and her mother are the only heirs at law, and that the former was a minor up to the time of her marriage in 1856; denies that said Glenn died seized of any lands, and denies that he, defendant, has failed to account for the choses in action, etc., of said estate. As to the negroes, the answer states that in May, 1838, defendant, after due and public notice, brought to sale six negroes of said estate, viz.: Bill, Harriet, Lydia and child, Guilford and Henry; the sale was perfectly fair in all respects, and all the negroes were bid off by G. L. Harrison, except Harriet, who was bought by Gus McCrea; that defendant got his friend Harrison, to run up said negroes to a higher figure than any one else would bid, and the prices paid were the highest market value at the time, to wit: for Bill, aged 10 or 12 years, $455.00; Lydia, aged about 30, and child, $861.00; Guilford, aged 13 or 14, $600.00; and Henry, aged 27 or 28 years, $1,100.00; that defendant, not having means of his own. to pay the debts of said estate, was compelled to sell Bill and Lydia and child to raise money for that purpose; made no profit on Bill and sold the other two at a loss; does not know whether either of said negroes are now living or dead; that he paid for Guilford the amount stated, and has had him ever since, and that said Guilford is now worth $1,000.00, and has averaged, since 1838, $90 or $100.00 per annum; that he paid the price bid for Henry, who is growing old, and now worth $600.00or $700.00—average hire since 1838 would reach $125.00 per annum. The answer further states, that in January, 1845, defendant made sales as follows of negroes belonging to said estate, to wit:

Mary, an old woman, 45 or 50, and her child Wiley, to H. Bunn, $300.00; Pool, a boy aged 10 or 11 years, also bid off by H. Bunn, at $250.00; Henry, a boy aged 19 years, to William Herring (actual sale), $400.00; Harriet, a girl aged 10 or 12 years, bid off by H. Bunn at $299.00; Charlotte, a girl about 9 years old, bid off by H. Bunn, at $365.00; Esther, a girl aged 12 or 13 years, bid off by H. Bunn at $250.00; Charles, a boy aged 8 or 9 years, bid off by H. Bunn at $155.00; that defendant kept all but Poole, Charlotte and Henry; that in 1850 he gave Harriet, then worth $500.00 or $550.00, to his son, Daniel W., and she, with her six or seven children, is worth now about $3,000.00, and but little, if anything, for hire; that Harriet and children constitute part of the estate of said Daniel W., who is dead; that in 1855 or 1856, he gave Esther to his daughter, Mary Faulk, and she, with her two small children, is now worth $1,500.00 or $1,600.00, and nothing for hire at this time; but her hire for seven years averaged about $30.00 per annum; that Charles is still in defendant's possession, and is worth $1,000.00 and $125.00 for hire, and has averaged $50.00 per year, for hire, for thirteen years. The answer denies that defendant bought any of said negroes, at an un-der-value; says the prices were the highest market value, and in all cases where he could get an advance at private sale, he charged; himself with the advance; that he acted in good faith, doing his best to make the property bring its full value; that he procured the services of Henry Bunn. to run up the negroes! for him to save the estate from, loss, times being hard and property selling low; that having disposed of Pool and Charlotte at an advance of $184.00, he promptly charged himself with the advance, and made return accordingly to the Ordinary; that he offered Mary and her child Wiley at cost, but could not get it; says the sale in 1845 was made under the order granted in 1838, all the negroes not being sold in the latter year because defendant hoped the debts would not require it, and he desired to save some of said negroes for his daughter (deceased's widow) and grandchild (Mrs. Redwine);' that another sale being neces-sary to pay debts., he applied to the Court in 1845 for leave to sell, when one of the members, of the Court announced from the Bench that a new order was unnecessary, and the previous order was then examined and found sufficient, and defendant acted under it; says he did make true returns of the sales, and the hire of said negroes, and has fully accounted for the proceeds of all the property, and is not in default to said estate one dollar; that as to advertising said sale, he was advised and believed that it was legal for an administrator to advertise in anticipation of an order of sale, and if he erred it was an honest mistake, and\' did not injure any one; that as to the debts against said estate having been paid before said sale, it is so far from being true, that to save the property from: sacrifice, he had to* advance his own private funds to pay said debts, as his returns will show; that as to the orders for sale of said property, if there was anything illegal, it was the act of the Court and not of defendant, who gave orders for notices: to be given according to law, and believed then, and believes now, the law was complied with.; that as to their being granted at an adjourned term, the Court inquired...