Windsor v. Bell

• Decision Date: 31 August 1878
• Citation: 61 Ga. 671
• Parties: Windsor et al. v. BELL, executor.
• Court: Georgia Supreme Court

61 Ga. 671

Windsor et al. v. BELL, executor.

Supreme Court of the State of Georgia

(August Term, 1878.)

Husband and wife. Statute of limitations. Executors and administrators. Amendment. Before Judge Wright. Webster Superior Court. March Adjourned Term, 1878.

In August, 1876, Windsor and his wife Josephine, brought complaint against Bell, as executor of the estate of Sampson Bell, deceased, for $4,634.78, besides interest, which they alleged said Sampson Bell, as administrator of the *estate of Eason B. Sweeny, the father of said Josephine, became indebted to the said Josephine as the sole heir-at-law of said Sweeny. The defendant pleaded the general issue, the statute of limitations and settlement.

At the September term, 1877, the plaintiffs moved to amend in the following particulars:

1. By making the suit proceed for the use of Josephine Windsor.

2. By alleging that Sampson Bell was the executor of the last will of Sweeny, deceased, instead of administrator.

3. By charging the said Bell not only as executor of Sweeny, but also as testamentary guardian of the said Josephine.

These amendments were allowed over the objection of defend-ant, Judge Crisp then presiding, and exceptions pendente lite filed.

When the case came on for trial on the merits, the plaintiffs introduced the will of Sweeny, which, after making certain specific bequests, gave the entire residue of his estate to the said Josephine, in the manner indicated in the first head-note, and appointed the defendant guardian of her person and property, directing that he should give special attention to her education.

Also, the records of the court of ordinary, which established the appointment and qualification of Bell as executor, and his last return, made June 7th, 1858, which showed the balance sued for in his hands.

The plaintiff Richard S. Windsor testified, in substance, as follows: My wife, Josephine, was Sweeny's daughter. Married her in November, 1866. She was Bell's granddaughter. Have known her since 1858; she was then six or seven years old— too small to go to school. Had a settlement with Sampson Bell in right of myself but not of my wife, as appears from receipt Received title to certain lands and $801.81 in money in settlement. Have all the lands yet except two parcels, one of which I sold for $300.00, and the other my wife sold for $65.00 on a credit. *At the time of settlement referred to, I did not know that my wife had any interest in the estate, but believed it all came to me. Did not know until the last term of the court that Bell was executor. The money received by me went to pay the firm debts of Windsor & Jowers, of which I was a partner. These debts were held by Bell. I and my family lived principally out of the store of Windsor & Jowers; treated it as I would any other money belonging to me, not recognizing my wife's right to it as her separate estate.

It was admitted that Sampson Bell died March 6th, 1875.

The receipt referred to was as follows:

"Georgia—Webster County:

"Received, May 14th, 1868, of Sampson Bell, executor of the estate of E. B. Sweeny, late of said county, deceased, $801.81, and titles to the following lots of land, to wit: * * * All of which I received from Sampson Bell, executor, in right of my wife Josephine Florence, in full, entire and complete satisfaction of all the rights, titles and interests, property claims or demands, I have, or might have, in and upon the estate, real and personal, of E. B. Sweeny, deceased, and my wife's father. And said Sampson Bell, executor as aforesaid, is hereby fully and entirely discharged and acquitted of any and all further claims on my part upon said estate. In testimony whereof, etc. (Signed) R. S. WINDSOR"

Here plaintiffs closed, and defendant moved for a non-suit, because the evidence showed that the action was barred, and also a final settlement.

The court stated that if counsel for plaintiffs so desired the motion would be overruled, but that he would instruct the jury that the plaintiff Josephine, was bound to sue within four years after she attained her majority, and not having done so, her right of action was barred. Under this ruling plaintiffs submitted to a non-suit, filed their bill of exceptions, and assign said ruling as error.

S. C. Elam; Cook & Hollis, for plaintiffs in error, cited Code, §§ 1847, 2922, 2926; 45 Ga., 458; 57 Ib, 459; 15 Ib, 122; 29 lb., 67; 31 Ib, 203. W. A. Hawkins; Thomas H. Pickett, for defendant, cited *Williams on Ex, 254, 959, 1796, 1399; 14 Gray, 118; 9 Pick, 395; Dicey\'s Parties, 49; 17 Md, 403; 16 M. & W, 451; 9 Abb. Pr. R, 109; 2 Edward\'s Ch, 336; 57 Ga., 412; 34 Maine, 340; 13 Pick, 328; 50 Ga, 384; 57 Ib, 204.

Bleckley, Justice.

1. The will created a separate estate in the testator's daughter, and on her marriage, in November, 1866, no marital rights attached in favor of her husband as to this property. The husband's settlement and receipt did not bind her. He acted in his own assumed right, supposing that his marital rights had attached, and not as her agent or trustee. The record indicates that in the settlement which he made with the executor, the husband used some of these assets to extinguish his own debt. Of course, she could not ratify the settlement as to that element, (Chappell v. Boyd, this term); and, besides, the record contains no decisive evidence of any ratification by her whatever. To any effective ratification, a knowledge of her legal rights would be necessary, since she did nothing to bring about the mistake under which her...