157 Ga. 546 | Ga. | 1924
U. H. Layfield executed his will on October 23, 1901, and died in 1913. The will provided that after payment of the testator’s debts his real estate should be divided equally between his five children and wife, naming them, “share and share alike.” J. M. Layfield, one of the sons, was appointed sole executor. Maud Bailey, one of the daughters, predeceased the testator, leaving two minor children, for whom a guardian was appointed. John W. Layfield, another son, died subsequently to the death of the testator, and left two minor children, for whom a guardian was appointed. After payment of all debts and sale of all the personalty and realty belonging to the estate except the “Hutchinson place,” and distribution of the proceeds of sale among the legatees, there remained the “Hutchinson place” which contained about 265 acres of land of the value of $7621. This property was advertised to be sold by the executor at the public-sales day in November, 1916. Immediately before the sale there was a meeting of the devisees, with the exception of the guardian for the minor children of John W. Layfield, at which it was agreed by all those present that P. H. Layfield, another son of the testator and one of the devisees, should in behalf of all the devisees bid in the property unless there should be another bid that exceeded $7621, and that if P. H. Layfield became the successful bidder he should take title from the executor and convey the same in parcels to. the devisees as parts of their devises, title being held by him in trust for them in the meantime.
1. The petition alleging a sale by the executor, we presume, in the absence of an allegation to the contrary, that it was authorized by the proper order of the court of ordinary. In these circumstances it is unnecessary to decide whether under the terms of the will the land should have been divided in kind.
2. Neither the purchaser of these lands, the executor, nor the other distributees under the alleged agreement by which the purchaser was to bid it in for all the distributees under the will, can attack such agreement as invalid on the ground that the guardian of certain minor distributees was without authority under the law to make the same. The purchaser, executor, and other distributees would be estopped from setting up want of authority of the guardian to make such contract, whether the guardian was authorized to make the same or not. Civil Code, § 4234; Smith v. Smith, 36 Ga. 184 (91 Am. D. 761); Groover v. King, 46 Ga. 101; Moore v. Carey, 116 Ga. 28 (42 S. E. 258). Therefore the contract must be treated as a valid contract.
3. The above agreement was not fraudulent and void on the ground that it amounted to a collusion between the purchaser and certain of the
4. The purchase of these lands by P. H. Layfield under such agreement created in behalf of the Bailey children an implied trust, and the purchaser should be held and decreed to be a trustee holding their share of this land in trust for them. Civil Code, § 3739; Rives v. Lawrence, 41 Ga. 283. As to the children of John W. Layfield represented by their guardian, it is alleged in paragraph 13 that they did not know about the agreement and are not bound by it. Construing this allegation to be a repudiation of the agreement, no implied trust arises in their favor thereunder.
5. The Bailey minors are not estopped by the receipt by their guardian of their share of the purchase-money paid by the purchaser, the guardian offering in the petition to restore the same to the purchaser. Groover v. King, and Moore v. Carey, supra.
6. The petition set forth a good cause of action'in favor of the Bailey minors; and for this reason the court erred in dismissing the petition.
7. Applying the above principles, it follows the court erred in sustaining a general demurrer to the petition as far as the Bailey minors are concerned; but in as far as applies to the children of John W. Layfield the judgment sustaining the general demurrer was not erroneous.
Judgment affirmed in part and reversed in pari.