Kerr v. Waters

By the Court.

Lumpkin, J.

delivering the opinion.

In Sail and others, plaintiffs in error, against Carter & Kenan, executors, &c. (8 Ga. R. 388,) this Court held, that one executor is not liable for assets which come to the hands of his co-executor, nor was he ordinarily responsible for his devastavit.'

We consider this case as fully embraced* in that decision. Indeed, without stopping to institute a comparison between the two, we have no hesitation in saying, that this is a much weaker case than the other, on many accounts. Not only was the bond of John J. Maxwell, the co-executor, out of which the legacy bequeathed to Sarah Elbert was to be paid, never in the possession, custody or control of George M. Waters, but the latter had ceased, for a quarter of a century, to take any active part in the management of the estate of Pray, the testator — John Pray. And that is not all. Maxwell, the co-executor and real debtor, resides in the neighboring State of Florida, and is entirely responsible. If he is in default, follow him and let not the collection of this claim be forced out of an innocent party, on uccount of the laches of Maxwell.