Horne v. Spivey , 44 Ga. 616 ( 1872 )

Montgomery, Judge.

The plaintiffs in error,' as administrators of John E. J. Home, submitted to arbitration certain claims held against the estate by Mary E. Byrd and the defendant in error. The arbitrators made their award, by which the amount due the defendant in error was awarded against the estate, and the administrators directed to sell certain property of the estate and appropriate the proceeds to the payment of the debt of Spivey, among other debts, Spivey claiming as assignee of an heir of the estate. The award is expressly against the administrators in their representative capacity, and that “the assets in the hands of Joel R. G. Horne and Thomas JST. W. Horne, as tlie administrators of John E. J. Horn, deceased, are subject to the claims of the said heirs,” etc. There is no award against the administrators personally. The award was made the judgment of the Court, and Spivey took out execution to be levied do bonis testatoris et si non, etc. The administrators filed an affidavit of illegality on the execution being levied on their individual property. The Coult overruled the affidavit, and ordered the levy to proceed. This was error. Had the arbitrators intended to find waste, we think they would have said so. On the contrary, there is evidence that they thought the administrators had faithfully fulfilled their trust. The award provides for the appointment of commissioners to take possession of the land of the estate and sell it, and appoints the administrators themselves the commissioners.

Judgment reversed.