Wicker v. Howard , 126 Ga. 119 ( 1906 )

Evans, J.

The facts of this ease bring it squarely within the ruling announced in Summerlin v. Floyd, 124 Ga. 980, wherein this court held that although an administrator who had misappropriated assets coming into his hands may have obtained his discharge by means of fraud practiced upon the ordinary and the heirs at law, “yet the judgment discharging him can not be set aside at the instance of adult heirs, unless they attack it by a proceeding commenced within three years from the date of its rendition.” His discharge, until regularly set aside, will preclude the heirs from calling on him to account for profits. which he made by secretly becoming the purchaser, through an agent, of property sold by him as administrator at public outcry, and afterwards resold by him at private sale for his individual benefit and advantage.

Judgment affirmed.

All the Justices concur, except Fish, G. J., absent. B. B. Baxter and William II. Fleming, for plaintiffs.

Purchase by administrator at his own sale, voidable, etc.: Ga. R. 12/591; 30/780; 39/381, 672; 46/290, 361; 69/372, 385, 518, 605; 106/-813; 107/449, 780; 116/28; 22/637; 33/163; 78/181; 99/730; 99 Am. Dec. 464; 6 Am. St. R. 262; Schoul. Ex. §358; 11 Am. & Eng. Enc. L. 1150, 1153. Duty as to administrator’s return: Civil Code, § 3462. Effect of judgment of discharge, and collateral attack thereof; Civil Code, §3510; Ga. R. 18/346; 98/791; 108/430. Lapse of time not counted until discovery of real facts of fraud: Civil Code, §§3785, 3772, 3510; Ga. R. 23/249; 59/338; 90/550; 94/490; 87/267; Schoul. Ex. §§ 358, 393; 19 Am. & Eng. Enc. L. 242; 130 U. S. 324; 21 Wall. 348.

Henry O. Boney, Q. Henry Cohen, and Boclney S. Cohen, for defendants,

cited Civil Code, §§ 3510, 3933, 3934, 3987, 5370; Ga. R. 56/101, 684; 101/594; 104/272; 18/346; 119/887; 121/547; 108-/439; 68/484; 12/68; 120/929; 117/471; 81/611; 98/487; 124/-980; 19 Am. & Eng. Enc. L. 242, 251; Bisp. Eq. (6th ed.) 383; 60 Miss. 839; 28 Fed. R. 280; 13 Ib. 152.