Merritt v. Merritt

Jackson, Chief Justice.

The legal question made in this record is whether or not the wife and children, as beneficiaries of a homestead set apart to them out of the estate of the husband and father, are concluded by the judgment of the ordinary on a settlement before him between said father and husband and legatees under a will of which said father and husband is the executor. If not concluded, the equitable plea is not only good but even without it the verdict, if that plea states the facts, would be against law and evidence on proof of the facts,

The claim of the legatees is under the will, and the legacy is put in a trustee for their benefit. He could have sued for the legacy years ago ; the legal title is in him, he is barred, and if he is, the infant legatees are also barred, 10 Ga., 358; 51 Ib., 159; 56 Ib., 168. The clause of the will is : “ I give for the benefit of the children of my son, John Merritt, the following property, to be in the hands of Benjamin Merritt, as trustee, to-wit: one hundred acres of land, whereon he now lives, aud five hundred dollars in cash.” This put the legal title in Benjamin Merritt. The will was published and executors appointed long before 1865, and the claim is barred by the act of 1869, as well as by the general statute of limitations.

Certainly the wife and children may attack the judgment, if on its face invalid, so far as it is a judgment not only de bonis testatoris but a personal judgment against the administrator. It nowhere appears in the record that the plea of ne unques executor, or a release to the executor, or plene administravit, or plene administravit prater was filed ; and such must be the case to authorize a judgment de bonis propriis against the administrator or executor. Code, §3573- It does not appear on the execution issued by the ordinary or any judgment rendered by him «that any such plea was before him, or any such question made. If not, this judgment and execution could not sell this homestead land, because it never was part of the estate of the testator. The judgment and execution being thus apparently invalid so far as to interfere with this homestead estate, it is protected until at least the judgment be legally made a judgment against the executor individually by suit thereon; in which event, or on the pending of such suit, the equities between all the parties would be open for settlement on a bill filed for that purpose. 55 Ga., 129.

But outside of this view in the settlement before the ordinary, the wife and children could not have become parties, and these homestead rights being anomalous and peculiar, it was held by this court in 59 Ga., 817 that they were not bound for that reason by a judgment of foreclosure of a mortgage, and wdre let in to defenses on an illegality — held then to be equivalent to a claim — by the father and husband for them.

The principle then ruled it seems covers this case, and the claimant here may set up the statute of limitations, or any other defense good against the suit of these legatees. 54 Ga., 462.

This will was made in 1854; the property divided in 1861; the homestead set apart to this wife and children long before the institution of this proceeding before the ordinary, as much as ten years prior to any hint of such a proceedng; when divided in 1861, the father of these children received largely more than the little legacy left to ah uncle for them. The will by agreement of all old enough, was set aside to let their father in to an equal share of the estate which gave him some eight thousand dollars, when he would have gotten nothing under the will, and while this is not binding on the infants, perhaps, though their uncle and trustee signed the agreement to divide, and warranted the division -to stand, yet the case presents facts which make it the duty of the courts, we think, to interpose every legal obstacle to their recovery from this homestead property. They may look to their trustee and recover from him so far as this record contains information to the contrary. At all events they cannot subject this homestead on this judgment and execution, so defective, until by the trial of the case in equity, either on this equitable plea or regular bill in chancery, the wife and children of the executor have a hearing thereon.

. Judgment reversed.