Spence v. Dasher

• Decision Date: 30 September 1879
• Citation: 63 Ga. 431
• Parties: SpEnce et al. v. Dasher, ordinary, for use.
• Court: Georgia Supreme Court

63 Ga. 431

SpEnce et al. v. Dasher, ordinary, for use.

Supreme Court of the State of Georgia

(September Term, 1879.)

[Warner, Chief Justice, being engaged in presiding over the senate organized as a court of impeachment, did not sit in this case.]

Administrators and executors. Practice in the Superior Court. Presumptions. Before Judge Wright. Mitchell Superior Court. November Adjourned Term, 1878.

Dasher, ordinary, for the use of certain children of Mary E. Walker, deceased, brought suit on the bond of the administrator, alleging mismanagement of the estate, etc. On the trial the main issue was as to certain land which the administrator had sold. It appears that he sold it for one-fourth cash, balance due in installments payable in one, two, and three years, for which he took notes. This, plaintiff contended, was an abuse of discretion by the administrator.

The jury found for the plaintiff $1623.48. Defendants moved for a new trial, on the following, among other grounds:

(1.) Because the court erred in charging the jury "that the administrator had the right to sell for cash or credit; but that he must, as to the terms, take into consideration the best interests of the estate, the creditors and he heirs, in making his sales."

(2.) Because the court erred in this: plaintiff's counsel was arguing to the jury in substance as follows: "If you find for the defendant in this case, the effect of it will be, that although he has the notes for this land in his hands, he shall never pay these heirs anything; that it would be a bar to their ever recovering anything, and would relieve defendant from all liability, " when defendant's counsel objected, and the court held or said "he would not decide that question now, that it might be an important one to the plaintiff in the future, but that it was irrelevant in the case on trial, " and failed to charge the jury on that point.

(3.) Because the court charged that the law presumed that it was for the best interest of the estate that the administratorshould wind it up in twelve months.

*(4.) Because the verdict was contrary to law and evidence.

The motion was overruled upon plaintiff's writing off $54.17 from the verdict. Defendants excepted.

Scaife & Spence; D. H. Pope, for plaintiffs in error.

No appearance for defendnant.

Jackson, Justice.

1. This suit was on the administrator's bond against him and his sureties, the jury found for the plaintiff and the judge below sustained the finding and refused a new trial, a...