Shipp v. Gibbs & Spence , 88 Ga. 184 ( 1891 )

Judgment affirmed.

Sterling Eckles left the will quoted in the first headnote. He appointed his wife and one of his sons, Erank M., executrix and executor. The wife qualified as executrix, took possession of the property bequeathed, and remained in possession until her death in 1889. Her co-executor died before her death. In February, 1887, an attachment in favor of Gibbs & Spence against J. T. Eckles was levied upon one third undivided remainder interest in the house and lot, and the property levied on was sold at sheriff’s sale to Gibbs & Spence. In June, 1889, Shipp was appointed administrator de bonis non with the will annexed of Sterling Eckles. By petition he asked for leave to sell the property, alleging that the sale was necessary for distribution and alleging no other reason. Hpon the petition the court of ordinary granted him leave to; sell the realty mentioned for the payment of debts and for distribution. He attempted to sell under this order, and Gibbs and Spence interposed their claim. Hpon the trial it appeared that when Susan Eckles died, there were in her possession two notes of J. T. Eckles to her, amounting to a little over $1,000, one made in 1880 and the other in 1886, the first having a credit of $60.40 January 26, 1885, and tho other a credit of $25.42 interest to October 20,1886. From testimony for the administrator it appeared that Susan E. was in possession, either by herself or tenant, of the realty up to her death, that afterwards and up to the time of trial the administrator was in possession, that the consideration of the notes mentioned was the loan by Susan Eckles to J. T. Eckles of the $1,000 mentioned in the will, and that J. T. Eckles is insolvent. The claimants did not contend that they were ever in possession of the premises, but one of them testified that one of the tenants of the property paid to' him (witness) some rents after the death of Susan Eckles and after the appointment of the administrator and after the claim was interposed. A witness had in his hands some notes transferred hy J. T. Eckles to his mother, Susan, which witness collected, amounting to some one hundred to one hundred and fifty dollars; paid the money over to Mrs. Eckles’ attorney; did not know how or on what consideration Mrs. Eckles held the notes; understood that J. T. owed his mother money ; did not know that these notes were held as collaterals for the notes above mentioned ; J. T. Eckles sold his mother some land for about $500, witness thought; did not know how she paid him for it.

Henry D. McDaniel, for plaintiff in error,

cited 32 Ga. 696; 39 Ga. 381; 58 Ga. 334; 65 Ga. 571; 69 Ga. 314; 57 Ga. 211; 59 Ga. 718; 79 Ga. 430; 48 Ga. 596; 54 Ga. 602; 47 Ga. 195; 68 Ga. 735; 65 Ga. 274; 63 Ga. 649.

McHenry & Walker, contra,

cited Code, §§2483, 2269, 2270, 2695, 2570-2584; 26 Ga. 515; 71 Ga. 196; 80 Ga. 36; 82 Ga. 687; 22 Ga. 323; 77 Ga. 352; 78 Ga. 26; 79 Ga. 150-180, 430; 54 Ga. 602; 75 Ga. 448; 86 Ga. 185; 55 Ga. 12, 359-449; 29 Ga. 585; 40 Ga. 410; 85 Ga. 236; 83 Ga. 79; 81 Ga. 722-776.

There was a verdict for claimants. A motion for new trial made hy the administrator was overruled, and he excepted.