Reports of Cases in Law and Equity, Argued and Determined in the Supreme Court of the State of Georgia, in the Year ...

Ayers vs. Daly.

ment in May, 1865, and was then worth so much in United States currency. The bill contained no allegation, and there was properly no evidence, warranting it to be thus dealt with. When a party sues for one grievance he must not recover for another.

3. No authority has been produced to us, and we know of none, for the novel and extraordinary practice of amending a bill before the master. On principle, we are clear that the master has nothing to do with receiving amendments. He is to act on such pleadings only as belonged to the case when it was referred to him. The judge orders the reference because the pleadings, as they stand, are ready for the master's work, and make a case needing his services. If the case could undergo changes before the master himself, by amendments submitted to him, the very reasons which induced the reference might be amended away, and the master's functions be made wholly useless. Each amendment to the bill, if important enough to vary materially the complainant's case, reopens the bill to demurrer. After such an amendment the judge, if aware of it, might not want the master's services. It seems to us wholly inadmissible for the latter to proceed as he did in this case, taking cognizance of an amendment, hearing it on demurrer, overruling the demurrer, and taking evidence touching the new facts alleged. This is turning the master's office into a court of equity, and for the time being, raising the master to the office of judge. It may be that under our broad statutory provisions the pleadings are amendable without special leave, while the case stands on a reference, but if so, the amendments are to be filed, not with the master, but in the clerk's office; and for them to reach the master some order of the court or of the judge would be necessary. In the absence of such an order, the master should proceed without noticing them, dealing with the case as it existed when it was referred.

Judgment reversed.

Lee vs. Chisholm et al.

AUGUSTUS H. LEE, executor, plaintiff in error, vs. Fortune N. CHISOLM et al., defendants in error.

I. When this case was here before it was ruled that the following items of testator's will-"I loan to my wife during her natural life $5,000 00; also that my executors purchase for my wife a negro woman or girl, such as she may select, the same to be loaned to her her lifetime, the same to be purchased out of the proceeds of my property." "It is my will and desire that at the death of my wife the money loaned her, and the negro to be purchased by my executors, be sold, and equally divided amongst all my children and my grand-daughter, Elderenda Brown” * * *—created a life estate in the wife with remainder to the children and grand-daughter, and that "it was the duty of the executor so to execute the will as to effect that intention by investing the money, paying the widow the interest thereof during her life, and at her death to divide it equally among the children and grand-daughter, as directed by testator's will." This ruling was in this case and between these parties, and as far as it goes, is res adjudicata. 2. A decree in favor of the widow against the executor on a bill brought by her and answered by him, in which he sets up no defense in behalf of the remaindermen, but admits that the corpus is due the widow under the will, and defends solely on the ground that he has not enough assets of the es tate wherewith to pay her, is no protection to the executor against the claim of the remaindermen for whatever corpus of this estate came into his hands in available assets. It was his duty to make these remaindermen parties by cross-bill, or by his answer in the nature of a cross-bill, or at least to have defended the widow's suit by setting up their right in remainder to the corpus, and having the will construed and their rights adjudicated; much less will he be so protected when his whole defense shows that he was endeavoring to protect his own private interests without the slightest regard to the trust he had undertaken, and when on a bill to open and review that decree in favor of the widow and to enjoin its collection, he swore that he “made no resistance and was not disposed to contest any matters with her," and again, that he supposed her bill "was simply an effort on the part of the complainant in said case to set up and establish her claim to said legacies against the estate of said Henderson, and this your orator did not and does not now pretend to resist," and when this whole bill of review and for injunction, sworn to by him, shows that it was filed solely to protect his own private estate.

3. Any money paid by the executor to the widow, whether voluntarily or under a decree so obtained, should have been the interest of this estate, and no part of the corpus, in order to protect the executor against the remaindermen, and as the evidence is sufficient to sustain the verdict of the jury in finding the sum they did, as available corpus in his hands, we will not control the discretion of the court below in refusing to grant a new trial.

Lee vs. Chisholm et al.

Administrators and executors. Res adjudicata. Remainder. Estates. Before Judge HALL. Newton Superior Court. September Term, 1875.

Reported in the opinion.

J. J. FLOYD, for plaintiff in error.

AMOS T. AKERMAN; CLARK & PACE, for defendants.

JACKSON, Judge.

Fortune N. Chisholm and three others brought their bill against Lee, the executor of Isaac P. Henderson, deceased, in which they alleged that they were entitled to certain property under the will of said Henderson, and particularly to an estate in remainder, in $5,000 00 in money, and in the value of a negro girl to be purchased by the executor for Mrs. Ruth Henderson, the wife of the testator; that by virtue of said will the said Ruth Henderson took a life estate in said $5,000 00, with remainder to complainants, and five others, children of said Isaac P. Henderson; that the negro girl was not purchased by the executor, but her equivalent in money went, by the terms of said will, to the said Ruth for life, with the remainder over to these complainants and the other children; that the assets of the said estate which came to the hands of said executor were sufficient to pay the said legacies for life, yet, that the said executor did not pay the $5,000 00, or the use or interest of the same over to the said Ruth for several years; that the said Ruth instituted suit in equity for her interest under the will, and after some litigation a decree was had in her favor for the sum of $7,279 40; whether this sum so recovered is the interest or principal and interest due the said Ruth is to be determined by the pleadings and proof in that case; that if the decree included the principal sum of $5,000 00 loaned to said Ruth, and the amount of money proper and necessary to purchase the negro girl, then said decree was erroneously rendered, and cannot excuse said exe

Lee vs. Chisholm et al.

cutor from accounting for the remainder with complainants, because they say it was the plain duty of the executor to have protected complainants as remaindermen either by bond and security for the repayment of the principal after the death of the said Ruth, or to have set up in his answer that said Ruth was entitled only to the interest on said sum; that said executor did not avail himself of these plain legal defenses, but relied on an insufficient answer, appearing without counsel in said important cause; that said executor paid over to the said Ruth the amount fixed by said decree, and sets up that said decree binds complainants and discharges him from paying them anything; whereas, they allege that said decree was the result of fraud or accident, of gross negligence or mismanagement by said executor; that the executor should have protected the rights of complainants, and failing to do so is chargeable for such dereliction; that said Ruth died in 1872, and that complainants are now entitled to the corpus of this estate, and they pray, waiving all discovery, for account and settlement.

To this bill the defendant, Lee, filed a full answer, setting forth the assets which came into his hands, their nature, and what he realized from them, and pleaded the judgment recovered by Mrs. Henderson and the payment thereof in bar of complainants' recovery. He also states that it was his duty to execute the will as construed by the court in that case; that complainants, as privies, are concluded by it; that they were all advised of the pendency of said suit of the said Ruth, and the rendition of the judgment, and should have protected themselves by a proper legal proceeding; he denied that the decree was the result of fraud or accident or negligence on the part of defendant.

The inventory and appraisement of Henderson's estate was introduced in evidence, the will and bill and decree in favor of Ruth Henderson, and the receipts of her counsel for the money due under that decree. The only oral evidence submitted was that of John Harris, who swore that he had no recollection of being notified by Lee of the pendency of the

Lee vs. Chisholm et al.

suit of Mrs. Henderson; he got his share of Confederate money; also, the evidence of Robert J. Henderson, that he saw the money paid to Mrs. Henderson, his mother, by the executor; that he received his part of the Confederate money; that his mother died in October, 1872; that the executor gave up to him his larger note on his affidavit that it was given for negroes; that he was afterwards sued on it, and judgment went in his favor on the statute of limitations; also, the evidence of Mr. Akerman, who swore that a proper fee for defending this case would be from $250 00 to $500 00; also, that of Anderson, which is immaterial; also, that of John T. Henderson, who swore that he owed the estate $2,100 00, and the executor owed him about $1,800 00, and they exchanged notes; he gave his note to the executor for the difference, on which he was afterwards sued, and was protected by the statute of limitations.

The inventory and appraisement seem to be as follows: