Thompson v. Thompson

• Decision Date: 05 March 1887
• Citation: 3 S.E. 261,77 Ga. 692
• Parties: THOMPSON and another v. THOMPSON.
• Court: Georgia Supreme Court

3 S.E. 261

77 Ga. 692

THOMPSON and another v. THOMPSON.

Supreme Court of Georgia

March 5, 1887

From superior court, Upson county; BOYNTON, Judge.

A. D Hammond and T. B. Cabaniss, for plaintiffs in error.

E. W Beck and W. D. Stone, contra.

BLECKLEY, C.J.

This was a bill filed by certain heirs and distributes of an intestate, who died a citizen of Kentucky. There was an administration there upon his estate, and also one in Georgia, upon his effects in Georgia. This bill was filed against the Georgia administrator, for an account, and the claim set up in it consisted of two classes of debts: (1) Those which the testator left owing to him by persons in Georgia other than the administrator; (2) a certain debt which it was claimed was due from a former partnership of which the Georgia administrator was the surviving partner. The general questions made were whether the defendant, as administrator, had used proper diligence to collect, as against those other debtors? whether there was a debt by note against the partnership of which he was the survivor? and whether, if there were such a debt unpaid at the time he took the administration, he would be responsible for it in his character of administrator? the bill being filed against him in that character.

1. At the trial it appeared that there had been a change of a certain note, from a debt due by two persons, to a note payable to the administrator, signed by another person. It further appeared that this second note had been exchanged for a third, and that only a small amount had been collected on this debt. The complainants requested the court to charge, to the effect that the administrator had no power to sell a note belonging to the intestate, which came to his hands as assets; and that, if he did so, he would be a guarantor of any note that was taken for it; and that if he exchanged the second note for a third, he would be a guarantor of that note. The court declined to give such instruction to the jury, and the motion for a new trial is founded in part upon that refusal.

In respect to this point we rule as follows: An administrator cannot, without an order from the ordinary, legally sell a promissory note payable to his intestate, which has come to his hands as assets. By selling without such order he renders himself liable for the value of the note, as he would for the value of any other personality illegally converted or disposed of. And if he exchange a note for one more valuable, he becomes liable, at the election of the beneficiaries of the estate, for the value of the latter in lieu of his liability for the former. Such dealing, however will not render him a guarantor of either note beyond its actual value. Looking at the legislation of Georgia upon the subject of disposing of choses in action by an administrator, we think it clear that, where an administrator has doubtful or insolvent notes to sell, he ought to apply to the ordinary for leave to sell, and make the sale publicly. Code, § 2558. He has no right to enter upon a course of trade with such assets in his own way. It may be that where a note still in the channels of commerce comes to the hands of an administrator, and he wants to realize on it, he could indorse it, treating it as worth its full amount, and getting that much for it. It may be that he could pass title to it under Georgia law, just as he could under English law; but the question before us relates to dead paper, not paper in circulation. It comes within the very words of the statute, and ought not to be offered for sale, nor the title to it relinquished, nor any attempt made to pass the title to another, save in the mode prescribed by the statute.

2. Another request, made in writing, to charge the jury, which the court declined to give, was to the effect that, if the administrator could have collected this third note by the exercise of ordinary diligence, he would be liable for the amount of that note. The reason for declining this request was that the judge thought the general charge covered it. It is not controverted that the request of itself was a proper one, but as the principle was embraced in the general charge, it is thought that that is a sufficient reason for not giving the request. We think not, and rule to this effect: Where several distinct matters involving diligence are presented to the jury, while it is proper to charge a general principle applicable to them all, yet if a specific charge, which is legal, apt, and precisely adjusted to one of these, be requested, it is proper to give the latter also, if it would materially aid the jury in applying the general principle to this one of the several matters for their consideration.

Now, law is not only to be submitted to the jury, but it is to be applied by them; and where its application is materially aided by a specific request, there seems as much reason to give that request as to give the principle; and looking to the evidence in this case, we have no doubt that the request was a proper one. It was bringing the general principle down to this specific instance; and the jury would have been helped materially by having the very words of this request delivered to them as a part of the charge of the court. A large part of the pressure of the case was upon this one paper.

3. Another request to charge was made, which set out the effect of not producing the alleged note against the partnership of which the administrator was the surviving copartner. The proposition laid down was that the non-production of the note would not be evidence of payment; and some further matter was contained in the request. The...