Tift v. Hartwell

• Decision Date: 31 July 1876
• Citation: 57 Ga. 47
• Parties: Nelson Tift, administrator, plaintiff in error. v. Charles P. HartwELL, executor, defendant in error.
• Court: Georgia Supreme Court

57 Ga. 47

Nelson Tift, administrator, plaintiff in error. v. Charles P. HartwELL, executor, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1876.)

(Bleckley, Judge, was providently prevented from presiding in this case.)

Verdict. Decree. Before Judge Wright. Dougherty Superior Court. April Term, 1876.

Hartwell, as executor of James C. Solomon, deceased, brought suit against Tift, administrator of T. M. Nelson, deceased, on a promissory note made by Nelson to R. F. Lyon, or bearer. The amount of the note was $800 00; but on it was indorsed a credit of $500 00.

Tift filed his bill, in which he alleged that Solomon had left to Nelson a legacy of $500 00; that the executor, Hartwell, refused to give his assent thereto, although the estate was free from debt, and there were assets remaining. The prayer was that the aforesaid suit be enjoined, and Hartwell be compelled to pay the balance of the legacy after deducting what should be shown to be due to his testator.

Respondent filed his answer in the nature of a cross-bill. He admitted the legacy as charged in the bill and his refusal to assent thereto. He further alleged that the estate of his testator consisted largely of slaves; that during the war this legacy could have been paid; but that Nelson having died, and there being at that time no representation on his estate, no settlement was had; that since the war nothing was left in his hands, as executor, except certain ante-bellum debts (which he believed to be valueless) and the title to a lot in the city of Columbus; that this lot was bought by his testator from Nelson, and paid for; that the latter referred him to R. F. Lyon for titles; that said Lyon refused to make titles until the purchase money should be paid, for which he held Nelson's note for $800 00; that this was paid by respondent's testator, and titles taken; that he went into possession of such lot, and so continued until his death, and afterwards it passed to respondent, as executor, and he still pays tax thereon: that some two years since, plaintiff took possession of said lot, claiming it as part of the estate of Nelson, and is still holding it and receiving profits therefrom; that such claim has injured his intestate's *estate and imperiled its solvency. The prayer is that plaintiff may be compelled to pay the balance due on the promissory note, and reasonable rents for the property, and that the legacy may be scaled so as to arrive at its value in present...