Rogers v. Fort , 19 Ga. 94 ( 1855 )

By the Court.

Starnes, J.

delivering the opinion.

We are of opinion that the allegations of this bill do not constitute a charge of legal fraud against Job Rogers, or of duress practiced by Mm, in operating on the affections of Ms sister-in-law, Mrs. Hargroves, or the fears of Mr. Spullocfc.

Eor myself, I have experienced some difficulty in agreeing that the charges of this bill clearly enough set forth such acts as make Rogers responsible for a devastavit, by the executors. And as the case goes back, I would suggest that these charges be made more distinct, by amendment, if the facts authorize it. But my brethren are clearly of the opinion, that these allegations show, that by reason of the influences practiced by Rogers on the executor and executrix, they did what they had no right to do; what was not for the best interest of the estate; and therefore, that which they did amounted to a devastavit. It is thought that the charges of the bill show a complicity on the part of Rogers, with the acts of Spullock and Mrs. Hargroves, or a taking advantage of those acts, knowing that they were wrong.

Whenever an executor commits a breach of trust, and another person takes advantage of the devastavit, knowing that the executor is not proceeding according to the terms of the will, such complicity will authorize those interested in the estate to hold the purchaser liable. (McLeod vs. Drummond, 14 Ves. 355 ; Andrews vs. Wrigley, 4 Bro. Ch. R. 125; Keane vs. Roberts, 4 Madd. 357; Ram. on Assets, Ch. 37, §4, pp. 491, 492; Adair vs. Shaw, 1 Sch. & L. 261; 1 Story’s Eq. 580, 581.)

Judgment affirmed.'