Blake v. Black , 84 Ga. 392 ( 1890 )

Bleckley, Chief Justice.

We have read the evidence and considered it carefully, and we entertain no doubt that the court committed error in not granting a new trial, on the tenth ground of the amended motion. We shall present as briefly as may be our reasons for this opinion.

1. Upon the facts set forth in the petition of Mrs. Bailey, construed in connection with the will of the testator of which she was executrix, the chancellor had jurisdiction under section 4214 of the code, embracing the act of 1866, to decree a sale of the land and to do this in vacation. We look to the substance of the matter, and think the proceeding was not vitiated by certain obvious errors such as the misdescription of Mrs. Bailey as trustee, the will itself, which was exhibited to the chancellor, showing that she was not a trustee otherwise than by virtue of her office as executrix. She ought to have been described simply as executrix. This same mistake occurs in the deed which she afterwards made to the purchaser. But we think it affects the validity of the deed no more than it did the validity of the petition and the decree rendered thereon. All the parties were before the chancellor and consented to the decree for a sale. All of them except two were of full age, and these two were duly represented by a guardian ad litem who joined in the consent. The petition, if untrue, should have been denied by the adult children for themselves, and by the guardian for the minors. If they had not intended to admit its truth, they should not have signed any instrument expressing their assent to the granting of the decree prayed for. The chancellor was fully warranted in treating the representations in the petition as absolutely true, and so treating them, they made a case of impossibility on the part of the executrix to carry out the will. The testator directed that Mrs. Bailey, his executrix, should carry out the will by managing in such manner as he might or should do, if he were personally present at the doing of the same, during her widowhood. He directed that his two sons should each have a horse and saddle when they became of age, and each of his five daughters a bed and furniture and a milch cow. The residue of his estate was to be equally divided amongst all his children and his wife. At the time the decree was applied for, some of these special legacies remained unpaid, and two of the children were not yet of age. The testator evidently contemplated that there would be means whereby to rear the children to majority and discharge the special legacies, without making sale of the land. He did not anticipate that his widow would become incapable of managing so large a place, nor did he foresee that any of the proceeds of a sale of the land would be needed either to pay debts or to provide the horses, saddles, cows, beds and furniture requisite to supply the outfit for the children as they successively arrived at majority. It turned out that a smaller establishment would be better for the widow and the minor children, and to obtain that, not only a sale was necessary, but leave to reinvest a portion of the proceeds. The ordinary could have-granted leave to sell, but could not have granted any to purchase another place. The difference in the two jurisdictions made it more appropriate to apply to the chancellor than to the ordinary; for the former could grant the full relief desired, whereas the latter could afford only partial relief. Whilst the facts of this case are quite different from those in Sharp v. Findley, 71 Ga. 654, we think the same principle governs in respect to the question of jurisdiction. We are inclined to think also that much of the reasoning in Sharp v. Findley, supplemented by that in McGowan v. Lufburrow, 82 Ga. 523, would bring this proceeding within section 2327 of the code, construed in the light of sections 4221 to 4223. Executors are trustees, and they are trustees having title to devised realty as well as to bequeathed personalty for the purpose of using the same, or the proceeds of the same, to pay debts and legacies. Both species of property are put by the statute on the same footing with respect to administration. The code, §2451, declares that all property “both real and personal, in this State,being assets to pay debts, no devise or legacy passes title until the assent of the executor is given to such devise or legacy.” This shows a purpose to lodge the title in the executor so long as the property may be needed to pay debts, and we doubt not also, so long as it may be needed to pay or procure the means of paying legacies not in the residuum. Dicta there are in Knapp v. Harris, 60 Ga. 403, which seem to militate against this theory. But neither that case nor any other decided by this court, so far as we know, involved the question whether an executor was such a trustee and had such title as to be within section 2327 of the code. Nor does the present case require a direct ruling on the question, inasmuch as the decree of sale may be rested, as we have rested it, upon section 4214. There is however a ease, that of Dean v. Central Cotton Press Company, 64 Ga. 670, which rules expressly that an executor may be authorized by a court of chancery in term to sell realty for the pui’pose of paying debts and legacies, and it seems pretty clear from section 2327 that what can be done in term, where a trust title is before the court to be acted upon, may be done in vacation by complying, as to the procedure, with sections 4221, 4222, 4223 and 4224. When the order for sale was granted in Knapp v. Harris and in numerous other cases ou the general subject, the code was not in force.

Our view of the law as to the jurisdiction of the chancellor to order the sale under which Blake claims title, will throw the stress of the case in a future trial upon other questions, and we deem it best to let those questions be shaped by the evidence which may be adduced on that trial. To decide them in advance would be of little or no utility, should the evidence then be materially different from what it was on the former trial. The one error assigned in the bill of exceptions is in overruling the motion for a new trial, the grounds of the assignment being those taken in the motion. We find one of these grounds sustainable, and that is enough to dispose of the present writ of error.

2. We would, however, suggest that a very troublesome small question might be easily set at rest by simply amending the declaration so as to allege the claim of title by the plaintiffs to be several as well as joint. The question whether some co-plaintiffs can recover unless all can, where the claim of title is laid jointly, was considered in Echols v. Sparks, 79 Ga. 417, and again in DeVaughn v. McLeroy, 82 Ga. 689. Whilst upon this subject, I will observe that I have examined the transcript of the record in the case of Pendergrast v. Gullatt, 10 Ga. 218, and found that the verdict was for the defendant. None of the plaintiff’s lessors recovered; consequently, what was announed in that case to the effect that in ejectment by two heirs, upon a joint demise, one might recover and the other not, was obiter. Judgment reversed.