Gouldsmith v. Coleman , 57 Ga. 425 ( 1876 )

Bleckley, Judge.

Though the husband, when sole heir of the wife, may pay her debts and take her estate without administration, (Code, section 1761,) there is no such provision touching the wife. Section 1762 only makes her sole heir in case of his death without lineal descendants. It does not dispense with administration, or vary the general rule laid down in section 2483, that personalty vests in the administrator. Where there are no debts, the beneficiaries of an estate may distribute it among themselves, with or without administration, and, in equity at least, such conventional distribution will be maintained: 3 Kelly, 422; 13 Georgia Reports, 478; 14 Ibid., 367; 23 Ibid., 142; 29 Ibid., 585; 34 Ibid., 152; 36 Ibid., 184; 38 Ibid., 264; 55 Ibid., 359, 449. It seems, however,- that in an ordinary action at law, the administrator cannot be resisted by the fact of such distribution unless from lapse of time a due administration can be presumed: 6 Georgia Reports, 443; 7 Ibid., 559; 31 Ibid., 753. .Doubtless, if all the parties interested were before the court, and if the defense were' presented by way of equitable plea, there would, at this day, be the same rule at law as in equity, and no more occasion to invoke a presumption, from lapse of time, in the one court than in the other. But without further legislation, the obstacles to bringing into a court of law parties other than those made such by the plaintiff or plaintiffs, would be insuperable. The plea of the defendant could not introduce new parties; and hence, in many cases, the strict legal rule would have to be administered. That rule must prevail in the present case. The only parties before the court are the widow as administratrix, and one of the creditors. What may or ought to be done with the property in the due course of administration, cannot be settled in this suit. The administratrix, by virtue of the letters granted to her by the prdinary, has the legal title, and that must prevail.

2. It seems well established by authority that the administratrix is not estopped by the prior illegal sale made by her as an individual: 3 Kelly, 263 ; 10 Georgia Reports, 361; 4 East, 441; 1 Adol. & Ellis, 49.

Judgment affirmed.