Barron v. Burney , 38 Ga. 264 ( 1868 )

McCay, J.

1. As between themselves, we see no objection to heirs-at-law, who are all sui juris, dispensing with administration and settling the estate by an agreement among themselves.

But as against creditors, if they do this, they are executors de son tort, and áre liable as such. If they have converted the property they are responsible for it, under the law governing suits against executors de son tort, and they cannot escape this bjr turning over to the administrator, after-wards appointed, the notes they took from the purchasers. At common law, it was presumed that every person who assumed control over the effects of a deceased person had in his possession- a will, and he was bound to account for all that went into his hands. In this aeeount he was entitled to such credits as any executor would be. If he produced no will, he could set off no debt due himself, but any other proper payments were allowed, until he accounted for all proven to have gone into his hands.

Under the Code, section 2406, it is provided that one who, without authority of law, wrongfully intermeddles, or converts to his own use' the personalty, shall be liable for double the value of the property so possessed or converted. Nor can he set off against this liability any debt due himself, or any debt he may have voluntarily paid.

2. The simple taking possession of this property by the heirs, and the use of a portion of it for the preservation of the remainder, or the application of it to the support of the widow and children for twelve months, by the heirs-at-law, %vould not, in our judgment, make them liable, under this section, to the penalties and burdens specified. But the proof here is, that they sold the- property, converted it to their own use, and, as against the creditors, we hold them liable to the penalties of the statute. •

They did not wrongfully intermeddle, so long as they merely preserved the property, or used it for the twelve months’ support. •

We agree with the Court below, that if they had simply used the property to supply the widow with her year’s support, allowed her by law, and to take care and keep in good condition the negroes and stock, they would not be liable.

As they were the heirs-at-law, their interference was not tortious nor meddlesome, and if they did not convert the property otherwise than to preserve it, and to support the widow, they did not act wrongfully.

The right of the widow to her support -for a year is not a debt of the intestate. In a strict sense, it is a provision, an incumbrance, higher than any debt, and if these heirs have supplied her, they may set that up.

3. But the evidence does not show they did this. That, it is true, was one of the terms of the agreement, but there is no evidence that this agreement was ever performed, except to sell the property.

We think, therefore, there ought to be a new trial in this case.