Thornton v. Jackson
| Decision Date | 21 December 1907 |
| Citation | 59 S.E. 905,129 Ga. 700 |
| Parties | THORNTON et al. v. JACKSON. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where suit was brought by descendants of a legatee under a will against the executor of the legal representative of the testator, alleging that the part of the estate which should have been paid to such legatee, but for her death, had been wrongfully held by the legal representative of the estate from January 1, 1867, to the bringing of the suit by the plaintiffs in 1906, and praying judgment for the amount so withheld, with interest from the first-named date, the suit was on its face barred by the statute of limitations.
[Ed Note.-For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, § 1761.]
Where on the face of the petition, it appears that the suit is barred, the point may be raised by demurrer. If it does not so appear, the defense of the statute should be set up by plea.
[Ed Note.-For cases in point, see Cent. Dig. vol. 33, Limitation of Actions,§§ 670-672.]
If the declaration would show that the bar has attached, but the running of the statute is claimed to have been suspended by minority, or for other legal reasons, the ground of such suspension should be stated.
[Ed Note.-For cases in point, see Cent. Dig. vol. 33, Limitation of Actions,§§ 664-666.]
An amendment which merely alleges that the action was brought within the time required by law, and other like conclusions and allegations, which were insufficient to save the petition from the demurrer, was properly rejected.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 33, Limitation of Actions,§ 697.]
Error from Superior Court, Fayette County; E. J. Reagan, Judge.
Action by Bennett Thornton and others against Bryant Jackson, executor. Judgment for defendant, and plaintiffs bring error. Affirmed.
J. W. Culpepper, Aldine Chambers, and W. M. Smith, for plaintiffs in error.
J. W. Wise, for defendant in error.
1-3. "All actions against executors, administrators guardians, or trustees, except on their bonds, must be brought within 10 years after the right of action accrues." Civ. Code 1895, § 3772. This was an action by persons claiming under a legatee of a will against the executor of the legal representative of the original estate alleging that a distributive share of the estate was wrongfully withheld from their ancestress, to whose right they claimed to have succeeded, and from them. It was an action against an executor or administrator (or his legal representative standing in his stead), and it was just the character of suit to which the section of the Code above quoted applied. Ten years was therefore the period of limitation which would bar the action, and not four years, as in the case of a mere creditor by account against the estate or its representative. Ten years began to run from the time when the cause of action accrued, and continued to run, unless it was suspended for some legal reason. The petition alleged that Needham Jackson reduced the assets of the estate of Jordon Jackson to cash prior to the 1st day of January, 1867, and had wrongfully held and retained the share of the estate belonging to their ancestress, Mary Jackson Thornton, and to them, from that date to the day of his death. They sought to recover interest on the amount for which suit was brought from January 1, 1867. Thus the petition on its face fixed that date as the time when the possession of Needham Jackson became wrongful, when the plaintiffs or their ancestress had a right to recover, when interest began to run in their favor, and consequently when the statute of limitations also began to run against them. Unless, therefore, the petition showed some legal reason why the statute was suspended, the action was barred. It was alleged that Mary Jackson Thornton died on September 1, 1863. Two of the present plaintiffs claimed as her children. At her...
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