Willson v. Whitfield , 38 Ga. 269 ( 1868 )

Warner, J.

This was a proceeding originally instituted in the Court of Ordinary of Jasper county, to require three of the executors appointed by the last will and testament of Matthew Whitfield, deceased, to give bond and security, as required by the 2411th section of the Code, upon the ground that said executors were mismanaging the estate. An appeal was taken from the Court of Ordinary to the Superior Court, and upon the trial of the appeal, the jury found a verdict requiring the executors to give security. A motion was made for a new trial in the Court below, upon the several grounds specified in the record, which motion was overruled by the Court. The refusal of the Court to grant the new trial is now assigned for error here.

It appears from the record that Matthew Whitfield, the decedent, died possessed of a large estate, consisting of real and personal property, and choses in action, leaving a will, by which he appointed his trusty friends, Leroy M. Willson, Pleasant Willson, John F: Patterson and William H..Mathis-, his executors, all of whom qualified as executors. What are the rights and duties of executors, as between themselves, (where there are more than one,) as declared by the Code, in regard to the management of the estate ? “ If several exec-tors are named in the will, one or more qualifying, shall be entitled to execute all the trusts confided to all, unless specially prohibited by the will; if more than one qualifies, each is authorized to discharge the usual functions of an executor;. but all must join in executing special trusts. Each executor is responsible for his own acts only, unless, by his own act, or gross negligence, he has enabled or{permitted his co-executors to waste the estate.” Revised Code, section 2413. There is no special prohibition in this will as to the acts of any one or more of the executors named therein. By the common law rule, co-executors, however numerous, were regarded, in the eye of the law, as an individual person, and the acts of any one of them, in respect of the administration of the effects, were deemed to be the acts of all, they all having a joint and entire authority over the whole property. 2 Williams on Executors, 620. Toller’s Law of Executors, 358.

One of the grounds of mismanagement relied on is, that the widow of the testator, shortly after his death, turned over to Patterson, one of the executors, a large amount of promissory notes, and other evidences of debt, which he has continued to hold, with the consent and approbation of two of the other executors, against the wishes and protestation of Mathis, the other executor. This is no evidence of mismanagement of the estate. Each executor is responsible for his own acts, and Mr. Mathis is no part of Whitfield’s estate. The insolvency of executors is not per se a sufficient ground to require security, the more especially when it appears that their pecuniary condition is quite as good now as it was at the time of their appointment by the testator.

We think the Court erred in its charge to the jury “that if more than one qualifies, each is authorized to discharge the usual functions of an executor, but all must join in executing a special trust, and I refer you to the will to ascertain ivhether, it contains a special trust.” Whether the will contained any special trusts which required the joint action of all the executors, was a question of law for the Court to decide, and not a question of fact to be referred to the jury for their, decision.

Upon looking through the evidence in ¿his record touching the question of mismanagement of the estate by the executors so as to require them to give security, we think that the verdict of the jury was strongly and decidedly against the weight of the evidence, and that the Court below erred in not granting a new trial upon that ground.

Let the judgment of the Court below be reversed.