Simmons v. Byrd

• Citation: 49 Ga. 286
• Parties: JAMES P. SIMMONS, plaintiff in err0r. v. DANIEL M. BYRD et al., defendants in error.
• Decision Date: 31 July 1873
• Court: Georgia Supreme Court

49 Ga. 286

JAMES P. SIMMONS, plaintiff in err0r. v. DANIEL M. BYRD et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1873.)

Administrators and executors. Distribution. Execution. Levy. Before Judge Rice. Gwinnett Superior Court. March Term, 1873.

This case was tried before Judge Davis, but the motion for a new trial was heard by Judge Rice, he having in the meantime, come upon the bench.

James P. Simmons brought case against Daniel M. Byrd and Amanda H. Cates for $10,000 00, damages alleged to have been sustained under the following circumstances: On December 7th, 1863, plaintiff was the owner of judgments against one Lodawick M. Cates, aggregating in amount to $6,124 58; Cates having died, the defendants, as executor and executrix of his will, took possession of his estate, the same being of the value of $30,000 00, and more than sufficient to pay all debts and liabilities. The defendants have *wasted the assets until there is not now more than sufficient to pay the liens of a higher dignity than those of your petitioner.

The defendants pleaded the general issue, and further, that the estate of Cates consisted almost entirely of negroes, which it was impossible to sell during the late war, except for confederate money, which the plaintiff refused to take upon his claims. The property, besides the negroes, was not sufficient for the year's support of the family. The Federal forces were making raids through the country, which rendered negro property of little value. The plaintiff levied his executions upon the negroes, and they were placed in jail for safe-keeping, but they were subsequently, by his consent and direction, taken out of the county in order to prevent their capture by raiding parties, where they remained until slavery ceased to exist.

The fact disclosed by the proof were substantially as follows:

Lodawick M. Cates died in September, 1863, leaving a will which authorized his executor and executrix to sell, either publicly or privately, certain slaves. The defendants qualified as executor and executrix on December 7th, 1863, and assumed control of the estate. The plaintiff urged the defendant to sell the negroes, on account of the near approach of the Federal army. This they refused to do, and hired out most of the negroes for the year 1864; but on July 6th, 1864, at the solicitation of the creditors of the estate, the plaintiff included, consented that they might be levied on and sold. They were accordingly levied on under one of the plaintiff's executions and went into the custody of the sheriff. Shortly thereafter, on account of the approach of the Federal forces, by consent of all parties interested, the negroes were sent out of the county. Upon their return, nothing further seems to have been done by the sheriff, the plaintiff or the defendants.

The defendant, Byrd, used the hire of the negroes, with about $500 00 of his own money, for the support of the family of testator. There was no evidence of the usual year's support having been set apart by appraisers.

*Much additional evidence was introduced which is thought to be unnecessary to an understanding of the decision, and is, therefore, omitted.

The jury returned a verdict for the defendants. The plaintiff moved for a new trial, because the verdict was contrary to the law and the evidence.

James P. Simmons; Winn & Simmons; Hillyer & Brother, for plaintiff in error.

Clark & Pace; J. N. Glenn; N. L. Hutchins, for defendants.

TRIPPE, Judge.

1. It is sought in this case to hold the executor liable to a judgment creditor of his testator, for not selling the slaves of the estate within less than seven months after his qualification as executor. The special reason assigned as making it a guilty default...