Thompson v. Fenn

• Decision Date: 22 February 1897
• Citation: 28 S.E. 39,100 Ga. 234
• Parties: THOMPSON et al. v. FENN et al.
• Court: Georgia Supreme Court

28 S.E. 39

100 Ga. 234

THOMPSON et al. v. FENN et al.

Supreme Court of Georgia

February 22, 1897

Syllabus by the Court.

1. Where the plaintiff's right of action depended upon the truth of an allegation in the declaration, to the effect that a certain parol contract therein set forth had been made and agreed to by all the heirs of a named intestate, and the evidence showed that the alleged contract had been made and agreed to by a portion only of such heirs, there was a fatal variance between the allegata and the probata.

2. An heir at law of an estate cannot, pending administration thereon, maintain an action against another heir for the conversion to his own use of personalty belonging to the estate, but may hold the administrator liable for knowingly permitting such a misappropriation.

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Action by Nancy Thompson and others against Laura F. Fenn and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

R. O Lovett and J. T. Pendleton, for plaintiffs in error.

Culberson & Blalock, Wm. Phillips, and C. B. Reynolds, for defendants in error.

COBB J.

Nancy Thompson and others, describing themselves as heirs at law of Candace Land, brought suit against Laura F. Fenn and others also described as heirs at law of Candace Land. The petition alleged that she died intestate, and her estate at the time of her death consisted of a city lot in Atlanta, Ga., and certain personalty. It also alleged that Laura F. Fenn, who was a daughter of the intestate, made a parol agreement with plaintiffs and all of the other heirs, in which it was stipulated that the administrator should expose said city lot for sale according to law; that said Laura F. Fenn should become the purchaser, and thereafter sell the same, and divide the proceeds equally between all of the heirs of said intestate. It was further alleged that, in pursuance of this agreement, said Laura F. Fenn bought said lot at administrator's sale at a sum much less that its value the other heirs refraining from bidding, in compliance with the terms of the agreement; and that, having thereby obtained an administrator's deed to said lot, she has entered into possession, and refuses to sell the same, and divide the proceeds, as she agreed to do. It was further alleged that Laura F. Fenn had taken possession of the personalty, and converted it to her own use. On the trial the...