Whatley v. Slaton , 36 Ga. 653 ( 1867 )

Walker, J.

1. A careful examination of the ordinance of 1865, “to adjust the equities between parties to contracts made, but not executed,” etc., satisfies us that it was not intended to include wills. The caption embraces three objects, all in reference to contracts, aud each section applies to one of these objects. “Contracts” was the subject under consideration, and while possibly there are cases where the ordinance might well be applied to wills, we are satisfied such was not the intention. By no fair rule of interpretation can the language be enlarged so as to embrace wills.

2. The Court sustained the demurrer and dismissed the bill, and then proceeded to direct the Executor how to administer the estate. When the bill was dismissed there was no case in Court, and the Court had no authority to make a decree in a case which he had turned out of Court. In the very act of dismissing the bill, he proceeds to give the representative the instructions for which the bill was filed, thus showing that the bill was properly filed, and that the demurrer ought not to have been sustained and the bill dismissed.

3. We approve the instructions given to the Executor; the error into which the Court fell was in giving such instructions in a case which had just been dismissed, and consequently had no standing in Court. It had passed out of the Judge’s jurisdiction. We reverse the judgment, and direct that the case be reinstated, and the “instructions” be embodied in a decree, so as to be the judgment of the Chancellor upon the facts and law of the case.

Judgment reversed.