Windsor v. Bell , 61 Ga. 671 ( 1878 )

Bleckley, Justice.

1. The will created a separate estate in the testator’s daughter, and on her marriage, in November, 1866, no marital rights attached in favor of her husband as to this property. The husband’s settlement and receipt did not bind her. He acted in his own assumed right, supposing that his marital rights had attached, and not as her agent or trustee. The record indicates that in the settlement which he made with the executor, the husband used some of these assets to extinguish his own debt. Of course, she could not ratify the settlement as to that element, (Chappell vs. Boyd, this term); and, besides, the record contains no decisive evidence of any ratification by her whatever. To any effective ratification, a knowledge of her legal rights would be necessary, since she did nothing to bring about the mistake under which her husband took the position of owner which belonged to her. 40 Ga., 181.

2. The executor qualified in 1856. In 1868 we find him still in the trust of executor, and recognizing its existence; for his settlement with the husband in that year was in that character and embraced assets with which he conceded himself to be chargeable. The legatee, Mrs. Windsor, was then a minor. She brought this action in 1876, and the cause of action alleged is not a devastavit committed prior to June, 1st, 1865. As we construe the declaration, it is simply an action for not paying over her legacy, and does not necessarily reach back, so as to fall within the limitation act of 1869. The Code gave her ten years after arriving at age. Sections 2922 and 2926. We think this, and not the act of 1869, applies to the case. It does not appear that as her guardian or trustee he ever charged himself with her legacy so as to become discharged in the character of executor, and there is no suggestion that she had any other guardian. The proper time for him or his representatives to have paid over her legacy to her was on her arrival at twenty-one years of age. Until then, she was an infant, and not competent to receipt for it. Her real complaint ought to be, (and we think the declaration does not affirmatively set forth a different one), that her legacy was withheld after she arrived at majority. If the suit was for something done or omitted prior to June 1st, 1865, the act of 1869 might bar it. We need not say that it would, though such is my individual opinion. The declaration is far from satisfactory in respect to certainty in the element of time. It ought to be more specific, but it is amendable. Giving it a liberal construction, we hold that the act of 1869 does not apply to it; nor do we know of any four year statute which applies.

3. The executor having died leaving an executor, the action is against the latter, not in his character of executor by representation of the first estate, but in his character of executor of the first executor. It is objected that the first estate should be represented before the court. If that be necessary, we think the defendant may represent it sufficiently without being more specifically charged than he is in this declaration. The facts appear on the face of the declaration, and the defendant’s connection with the original estate is deducible from them with certainty as a legal conclusion. He is answerable directly to the legatee for her legacy to the extent of the assets with which the first executor was chargeable; and it makes no difference to the defendant, so far as it now appears, whether these same assets have come down to him, or whether they are to be accounted for out of the assets which have come to him from the estate of his immediate testator. If he has the means of paying the legacy which the first executor ought to have paid, whether he has derived them from the one estate or the other,-or partly from each, is a matter of indifference to the legatee. And the defendant himself cannot suffer, for when he has exhausted legally the assets from both estates which have, or may come to his own hands, he will have discharged himself from further accountability.

4. The amendment to the declaration by which the misdescription of the deceased executor was corrected, the mistake being in denominating him administrator instead of executor, was allowable. Why not ?

5. The joinder of the husband with his wife as plaintiff, was matter of form, and there was no error in allowing the declai-ation amended so as to make it appear that the suit was for her use. She is the only necessary plaintiff, and the ease should be tried just as if she were the sole plaintiff.

Judgment reversed.