Morrow v. Cloud , 77 Ga. 114 ( 1886 )

Jackson, Chief Justice,

Suit was brought by Miss Cloud to recover from W. H. H. Morrow et aL, as executors de son tort ofC. A. Key, deceased. She recovered, and Morrow, being dissatisfied with the court’s refusal of a new trial, brought the case here.

1. It is a clear case of an executor de son tort. The deceased left a will with Morrow; he filed it and had it recorded by the ordinary, but took out no letters with the will annexed, nor any other legal authority to administer on the estate.

2. Nor is the evidence sufficient to show a partnership between Key, the deceased, and the female teacher with whom it is alleged that he was in partnership, and who survived him.' The defence set up on this point is that the surviving partner is the proper party to be sued, which is undoubtedly the law, but the trouble is that there is no evidence sufficient to prove the partnership, and none at all that Miss Cloud knew of such' a partnership. She contracted with Key; he was to pay her so much per month in money; he has not done so; liis estate in the hands of Morrow, who seized it unlawfully, is ample to pay the debt; the evidence and the law, the equity and justice of the case, are all with the verdict and the judgment of the' court below, and it must be enforced.

Judgement affirmed.