majority"> Beck, P. J.

(After the foregoing statement.)

1. We are of the opinion that the court properly overruled the general demurrer. If, as alleged in this petition, Mrs. Kitty Pickron entrusted to her husband the making of an exchange of a piece of property of which she was the sole owner, for another piece of property, it being understood that her husband, as her agent, should take a conveyance of the latter piece of property to her, and he failed to do this, and took, instead of a conveyance to his wife, a conveyance to himself of the. property for which the exchange of his- wife’s property had been made, there was a resulting trust; and if, when the wife subsequently discovered that a deed to her husband had been taken to the property for which she had exchanged hers, she demanded that a deed to herself be executed, and the husband promised to do this, and the wife, being illiterate and inexperienced in matters of business, believed that he had done so, when in fact he had not, then upon his death the representative of her estate, or her heirs, would be entitled to have a decree that the title to the land purchased by the exchange of her property be in her estate.

2. The petitioners allege that they are, the only heirs at law of Mrs. Kitty Pickron, and that they are in possession of the land which the administratrix of S. L. Pickron is about to sell, having obtained the proper order for that purpose. “An administrator can not sell property held adversely to the estate by a third person; *661he must first recover possession.” Civil Code, § 4033. The petitioners might ordinarily have filed a claim, which would have been sufficient to stop the sale and raise the issue of title; but having alleged that while the paper title was in the estate of S. L. Piekron the equitable title was in them, and that they had the right to a decree so declaring, they obtained standing in a court of equity to prevent the sale until their alleged rights could be adjudicated.

3. We are of the opinion that the provision of our statute (Civil Code, § 3997), allowing an administrator twelve months from the date of his qualification to ascertain the condition of the estate, is not applicable to a case like the instant one. The rule generally-adopted by courts in construing statutes which give an exemption from suits, such as that just referred to, is, that where the suit, does not seek to fix or establish a liability against the estate, it does not come within the statute. Lester v. Stephens, 113 Ga. 495, 500 (39 S. E. 109). • “It is not, however,‘every suit against an executor or administrator which falls within this statutory provision. To fall within its provisions, it must be against the personal representative as such. By this we understand, not only that the suit must be against the representative in his representative capacity, but that it must seek to fasten or establish a liability upon or against property of the decedent.” Alabama State Bank v. Glass, 82 Ala. 278 (2 So. 641). It is. pointed out in the decision of the ease of Lester v. Stephens, supra, that this ruling by the Supreme Court of Alabama was made in construing a statute similar to ours upon this subject of exemption of administrators from suits for twelve months.

4. But while the court properly overruled the general demurrer, certain of the grounds of special demurrer were meritorious and should not have been overruled. The grounds of special demurrer need not be taken up in detail; they are very numerous and contain frequent repetitions of criticism upon the petition. We are content with having indicated in headnote 4 the grounds of special demurrer which have sufficient merit to require a reversal of the judgment overruling them; so that when the remittitur. from this court reaches the court below the petition may be amended where defective, or be dismissed in case the plaintiffs fail to amend so as to cure the defects.

Judgment reversed.

ATI the Justices concur.

Citation profile

Relationships

How this case has been treated — in progress