Savannah morning news. [volume] (Savannah) 1868-1887, 1881-04-14
CASES FROM CHATHAM.
supreme Court Decisions.

supreme OOuE9 OSGA3AOnSs
The following decisions in cases from
Chatham county, rendered by the Supreme
Court, are of general interest:
Jones ct al, executors, vs.. F~reidenoerg q
Co. Case-from Chatham. Landlord and
tenant. Damages. Negligence.
CRAWFORD, J.
Two rooms were situated on the fifth floor
Of q building, and had q bath room and
water closet appurtenant to both. One OF
the rooms was rented to and In the exclu-
sive possession Of a tenant; the other was
not, but remained In the control OF the land
lord, although he allowed the tenant to carry
the KEY to a door which opened into a hall
way common both to the occupied and I'M
occupied room. Damage occurred to ten
ants on floors beneath BY careless use OF
the bath room:
Held that, under the decision in So Ca,
6l2, the landlord was liable, although not
personally concerned in sue negligent use.
Judgment affirmed.
j. r. Saussy for plaintiffs in error; CHS
holm 81 Erwin for defendants.
Churchill VS.. Bee & Co. ct al. Equity-from
Chatham. Practice in the Supreme Court.
Practice in the Superior Court. Dover.
Administrator and executors. Attorney
and client.
JACKSON, G. j.
l. Exceptions to a decree in equity bring
before the Supreme Court the record proper
to the cause, that is, the pleadings in the
case and the verdict of the jury in answer
to questions %propounded by the court when
the case is so submitted to the jury; and the
writ of error will not be dismissed because
the bill of exceptions does not contain or
exhibit the testimony In the cause.
2. The decree should follow the verdict so
far as facts are stated on the issues present.
ed by the questions ~propounded, and the
decree should be based thereon in connec-
ton with the facts admitted in the plead
ings; but deductions of law, If made by the
jury, will be disregarded by the Chancellor,
who will, from the whole of the facts found
and admitted, deduce and apply the law,
and so frame the decree.
3. Where a testator bequeathed his entire
estate to his widow and only son, and ap-
pointed them the executors of his will, and
qualified, and as %eXecutrix as well as ind
vidually sold a part of the realty, making a
deed thereto, with warranty in both ca
pacities, she will be held not entitled to
dover in such realty so conveyed and war
ranted.
4. Where In like manner she sold another
portion of the realty and bought 1t herself
at a certain price, and paid the son a por-
ton of the price and mortgaged the proper
ty to the son to secure him in the remainder
of his half of the purchase money, she will
also be held to have elected to take under
the will and not to be entitled to dover in
the land so conveyed and m~ortgaged.
5. The entire property left by the ~testator
is a trust fund for the payment of his debts,
and the executor is the trustee faithfully to
see it applied to that object; and If the
widow be the e%Xecutrix, that fact does not
absOlve her from the obligation of so apply
ing the fund. While the fact tina she is
executrix will not impair any right to
dover which she may possess, yet acts of
hers as executriX in so disposing of the
realty as not to consist at all with the exer-
else of that right should be construed to
manifest her election to take under the will
in lieu Of dover, nor will she be permitted
to set up her ignorance Of the condition of
an estate which she obligated herself to adj
minister, or OF her right to dover therein to
show that such election was not made
freely and knowingly.
6. Whilst a court of equity, when it lays
its hands on an estate, may finally admins
ter it and should make a final decree there
on, yet If in consequence of priorities not
fully exhibited in the %pleadings and verdict,
the chancellor sees fit to remand the details
of those matters to be adjusted by the adj
ministrator with the will annexed under the
supervision Of the Court of Ordinary, this
court will not interfere, especially where
the ends of justice Would seem to be adj
vanced thereby, and more especially where
counsel for plaintiff in error does not insist
here On this point made in his bill of excep-
tions.
z. The widow, before she can claim the
payment of the sum set apart as q years.
support, must account for funds of the es-
tate in her hands, and If she has paid debts
of the estate Herewith as e%xecutrix, IL
should appear that these debts were of such
dignity as to be prior to the claims of the
creditors in the pending cause.
s. The amount of fees of counsel for
bringing the money in court should be
fixed by the jury On proof of the value of
the service, and the chancellor on their YER
dict should decree the payment thereof; but
where the chancellor has decreed them with
out such verdict, and the amount is reasona-
BILE, this cour will not set aside that decree,
especially where the counsel for plaintiff in
error declines to press this point here,
though made in the bill Of exceptions.
Judgment affirmed.
Lester Il Ravenel for plaintiff in error;
George A Mercer, j. r. Saussy, P. w. Mel
drim for defendants.
Dean, executor, VS., Feeley ct al. Eject
ment-from Chatham. Parties. Practice
in the Superior Court. Ejectment. Ad-
ministrators and executors. Minors.
SPEER, j..
l. Where pending a suit the plaintiff died,
and an order was taken which recited that
the death had been suggested of record,
motion to make parties made and notice
given to the opposite party, and which or
dered the suit to proceed in the name of the
legal representative of the deceased, objec-
ton TO such order on the ground that the
motion was not in writing, should have
been made at the time; where the case pro-
ceeded to trial, and no objection was made
until a second trial at a subsequent term,
it was then too late to raise the point.
(a) In the present case, If there was any
defect in the original order, it was cured by
a motion in writing and order based there
on, made after the court had ruled the
original order insufficient.
2 Where pending an action of ejectment
by a minor, she died, the action did not
abate, but her legal representative could be
made a party and proceed for the recovery
of the land and mesne profits as well az
costs.
3. Upon the death Of a minor plaintiff In
ejectment the declaration could not be
amended by adding demises in the name of
her guardian and legal representative.
Judgment reversed.