Smith v. Ardis

• Decision Date: 31 July 1873
• Parties: JOHN A. SMITH, administrator, et al., plaintiffs in err0r. v. JOHN ARDIS, trustee, defendant in error.
• Court: Georgia Supreme Court

49 Ga. 602

JOHN A. SMITH, administrator, et al., plaintiffs in err0r. v. JOHN ARDIS, trustee, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1873.)

Administrators and executors. Amendment. Statute of limitations. Trusts. Before Judge Harvey. Gordon Superior Court. February Term, 1873.

This case has been before the Supreme Court at a previousterm: See Ardis, trustee, v. Printup, administrator, et al., 39 Georgia Reports, 648. The bill is there fully reported. All the facts necessary to an understanding of the issues here presented, are incorporated in the decision.

A. W. Hammond & Son; J. J. Fain, for plaintiffs in error.

Warren Aikin; W. H. Dabney, for defendant.

WARNER, Chief Justice.

1. The only question made in this case is whether the Court below erred in overruling the demurrer to the amendment to the complainant's original bill, which seeks to make Smith liable individually for the wrongful conversion of the trust funds, when the original bill charges him with having received the trust money, as the administrator of Abbott's estate. The originall bill was filed against the defendants on the 2d day of October, 1868, in which it is alleged that the defendant, Smith, as the administrator of Abbott, made a private contract with Skelly to sell him a settlement of land in Gordon county for the sum of $12,000 00; that the land was sold by Smith, as administrator of Abbott, at public sale, to perfect the title, and was bid off by Skelly in the spring of the year 1860 for *$8, ooo 00, Skelly giving his notes to Smith, as administrator of Abbott, payable at different times, for the sum of $12,000, specifying therein that the same was in part payment of said Abbott's land. Smith, as administrator of Abbott, executed a bond to Skelly to make him a title to the land when the note should be paid. The complainant alleges in his original bill, that Skelly paid $7,100 00 on the notes, and that the money so paid by him was the money of his cestui que trusts, and that Smith knew it. The object of the original bill, manifestly, is to subject the land to the payment of the alleged trust debt, alleging that Skelly's estate is insolvent. In fact, the bill prays that said Smith, as administrator of Abbott, may be required, by a decree of the Court, to convey the land to the complainant, as trustee, for the use of his cestui que trusts, and that the bond and notes be canceled, or that the land be sold and the complainant's trust debt may...