Brewer v. Brewer , 7 Ga. 584 ( 1849 )

By the Court. —

Warner, J.

delivering the opinion.

[1.] The two suits which have been, consolidated and argued together in this Court, were instituted in the Court below, by the executors of Drewry Brewer against Clark Brewer, the defendant, on two separate instruments; one of which is admitted to be a promissory note, and the other was ruled by this Court to have been a due-bill, when formerly before it at the last May Term. See Brewer vs. Brewer, 6 Ga. Rep, 589, The objection, to this due-bill, on the ground that it did not import a consideration, was, in our judgment, properly overruled, Cary vs. McDougald, 7 Ga. Rep. 85.

[2.] The defendant then offered to show, that the money due on the instruments sued on, had been given for money advanced by Drewry Brewer, the testator, to him, and that the testator had, by a clause in his will, bequeathed to him' the money advanced for him, say fourteen hundred dollars, and that the estate of Drewry Brewer was perfectly solvent, and able to pay all debts and specific legacies, bequeathed by his will. The object of this testimony, offered on the part of the defendant, was to defeat the recovery of the plaintiffs, who, as the executors of Drewry Brewer, were endeavoring to reduce to their possession the assets of their testator.

The Court below rejected the evidence, and, in our judgment, properly rejected it. The argument for the plaintiff in error is, that there exists no reason why the executors should be permitted to recover the amount of the notes from the defendant, inasmuch as the same is not wanted for the payment of debts or legacies, and that they will be compelled, ultimately, to refund it back to him as his portion of the legacy given him by his father’s will. It is a sufficient answer to this argument to remark, that the law does not permit the defendant to withhold his specific legacy from the executors, without their consent, which is not pretended to have been given. Toller, in his Law of Executors, states the rule to be, “ If, without the assent of the executor, the legatee take possession of the thing bequeathed, the executor may maintain an action of trespass against him. Nor even in a case of a specific legacy, whether a chattel, real or personal, be in the custody or possession of the legatee, and the assets be fully adequate to the payment of debts, has he a right to retain it, in opposition to the executor, by whom, in such case, an action will lie to recover it. Nor has such legatee authority to take possession of the legacy, without the executor’s assent, although the testator, by his will, expressly directs that he shall do so; for if this were permitted, a testator might appoint all his effects to be thus taken, in fraud of his creditors.” Toller’s Law of Executors, 306.

At Law, the executors have the right to recover the amount of the notes from the defendants, as part of the assets of their testator’s estate. That a Court of Equity might restrain their collection, upon a proper case made, we do not pretend to deny; but in a Court of Law, the estate of the testator must be settled in the due course of administration. This is the regular and safe course, and we are not willing to create an exception to it, when the law does not create any.

Let the judgment of the Court below be affirmed.