27 S.E.2d 886 | Ga. Ct. App. | 1943
1. Where a removed administrator is called to an accounting and settlement with the administrator de bonis non in the court of ordinary, the citation is all the pleading necessary. It is proper, however, to petition the ordinary for such citation, giving the reasons therefor.
2. (a) An inventory and appraisement under the provisions of our law, properly returned, sworn to by the administrator, allowed, and recorded, is prima facie evidence of the estate and the value thereof; but if incorrect, the burden rests upon the administrator, in a final settlement and accounting by him, to show its incorrectness.
(b) An annual return of an administrator, properly made under the terms of the statute, filed, allowed, and recorded, is prima facie evidence of its correctness, and any one seeking to impeach it must carry the burden of proof of its incorrectness. But where such alleged return is not filed, allowed, and recorded, there is no presumption of its correctness, and *196 the burden rests on the administrator to submit proof of its correctness in a final accounting and settlement.
(c) The verdict for attorney's fees is reversed, for the reasons set out in the opinion.
"Georgia, Fulton County. Inventory and appraisement of all the personal property and the real estate lying in said county, belonging to the estate of G. J. McWilliams, deceased:
"A lot or parcel of land located in the City of Atlanta, in Fulton County, on Allene Avenue, 54 feet on Allene Avenue, running back 150 feet to an alley, with a six-room house on it, known as #928 Allene Avenue, S.W., between Bonnie Brae and Pearce Streets, valued at .........$1000.00
"A lot or parcel of land located on Whitehall Terrace and Beard Streets, in City of Atlanta, in Fulton County, 50 feet on Whitehall Terrace, running back East 214 feet to Beard Street, with a two-story house on Whitehall Terrace, known as #506, and two negro houses on Beard Street known as Numbers 31 and 33, valued at .............. 1250.00
"A lot or parcel of land located on Formwalt St., in City of Atlanta, Fulton County, 54 feet on Formwalt St., running back 111 feet to an alley, with a five-room house *197 known as #495 Formwalt Street, and a negro house on rear of lot, valued at .................................... 1250.00
"A tract or parcel of land located in DeKalb County, Ga., being 116 acres, in land lots 85 and 86 in the 15th District of said county, valued at ........................ 2000.00
"A promissory note signed by Mrs. Mary Latham Denning, dated July 14, 1924, payable to Mrs. Elizabeth McWilliams, and a loan deed to secure the same, due Sept. 1, 1929, with interest at 8% per annum, said deed to secure said note conveying 116 acres of land in land lot 29 in the 9th district of originally Campbell County, now Fulton County, Ga. Also two lots 81, 82, 83, 63, 64 in the town of Campbellton in said county of Campbell, now Fulton County, Ga., in land lot 38 of said county, valued at ........................................... 1000.00
Cash in bank ................................................ 129.00
Cash collected on note from Dr. Landham ..................... 958.00
Cash collected on rents ..................................... 49.00
One promissory note on C. J. Rhineberger, principal sum 800.00
One Chevrolet car valued at ................................. 100.00
Household furniture located at Formwalt St., valued at 60.00
Jewelry located at same place, valued at .................... 150.00
"Property claimed by Mrs. McWilliams at her death and by G. J. McWilliams as her sole heir at law:
"A lot or parcel of land located in the City of Atlanta, in Fulton County, Georgia, known as #342 on 6th Street, U. E. in said City of Atlanta, valued at .................... 4000.00
"A lot or parcel of land located in the City of Atlanta, in Fulton County, Georgia, known as #912 Hall Place, N.W., in said City of Atlanta, valued at ................... 1000.00
"A lot or parcel of land located in the City of Atlanta, in Fulton County, Georgia, known as #817 Glendale Terrace, N.E., in said City of Atlanta, valued at .................... 4750.00" On August 26, 1941, on petition of alleged heirs of G. J. McWilliams, S.C. McWilliams was removed as administrator, and Frampton E. Ellis was appointed administrator de bonis non. Upon application to the court of ordinary, Ellis obtained citation requiring his predecessor to make an accounting and settlement with the administrator de bonis non. The application for citation *198 contained five paragraphs. The first alleged the appointment of S.C. McWilliams as administrator. The second, the appraised valuation of the estate. The third, that S.C. McWilliams had made no accounting of his trust, and had filed no returns, and that an accounting and settlement and final returns were necessary in order that the administrator de bonis non could determine the estate and distribute the same according to law to those entitled to receive it. An order was passed requiring S.C. McWilliams "to make said full, final correct return and accounting with Frampton E. Ellis, adm. de bonis non the estate of G. J. McWilliams, deceased, on or before February 9, 1942." Service was duly acknowledge by S.C. McWilliams. He answered specifically each allegation of the petition. He admitted paragraph 1. In paragraph 2 he stated that he had "made reports from time to time concerning the estate which are file in this court; and attached hereto and forming a part of this response is an additional report and accounting of his trust. Further answering said paragraph, your respondent shows that the value of the estate was not $21,451.51 [inventory shows only $18,496], nor any substantial part thereof. This valuation will be explained later in this response." As to paragraph 3, he stated that he had from time to time been cited in various courts in many lawsuits involving various transactions. In paragraph 4 he stated that he was removed as administration without a hearing, and that the court of ordinary 5, he stated that although he had been removed as administrator, he did not mismanage the estate, and reported at a various times to various heirs and to attorneys regarding the status of the state. The further "response," including the allegations and exhibits, contains some 75 pages alleging certain litigation concerning the estate in which S.C. McWilliams was connected, and in addition, attaching purported returns for the years 1937 to 1941, inclusive. The answer is not verified. Frampton E. Ellis filed a caveat to the response, in which he specifically objected to its legal sufficiency. By consent, the case was appealed to the superior court for the final disposition. On the trial the court ruled that the burden of proof was on the administrator de bonis non, whereupon his counsel introduced in evidence the inventory and appraisement, and the annual returns for the years 1934, 1935, and 1936. There is no evidence *199 that the returns were filed and allowed and approved by the ordinary. Several of the petitioners who procured the removal of S.C. McWilliams testified as to their relationship to G. J. McWilliams, and as to their right to distributive shares of his estate. These witnesses also testified as to their knowledge of the sale of some portions of the real estate. John Lowe Smith testified that he purchased, at public sale, three parcels of the real estate specified in the inventory, to wit: 928 Allene Avenue; Whitehall Terrace; Formwalt Street. "I paid for all of it . . $1400." This testimony related to an allegation in S.C. McWilliams's "response" concerning the amount the administrator received from these pieces of property. The administrator de bonis non testified in substance that the removed administrator had made no accounting to him, and that he had received nothing of value from him. The attorneys for S.C. McWilliams (Messrs. Hugh Howell and W. E. Armistead) testified in substance as to the litigation in which the former administrator had been involved in the administration of the estate, and as to professional services and the value thereof which they and other attorneys had rendered to the former administrator, to substantiate the charge of $1000 against the estate yet unpaid. Such in substance is the material evidence submitted concerning the accounting and settlement which is the main (if not the sole) issue in the case.
The jury returned the following verdict: "1. That the administrator did not make proper returns since 1937. 2. That the $1000 attorney-fee be allowed. 3. Expenditures by administrator S.C. McWilliams be allowed." The court passed the following order: "(1) That the administrator, S.C. McWilliams, did not make proper returns since 1937, but that up to and including 1937, said administrator has made proper returns of his acts and doings as administrator of said estate. Let S.C. McWilliams file his returns to this court not later than Dec. 14, 1942. (2) That S.C. McWilliams, as administrator, is indebted to Judge W. E. Armistead and Heyman, Howell Heyman in the amount of $1000 in attorneys' fees for services rendered the administrator before the proceedings to remove him were brought, and the judgment against the estate of G. J. McWilliams, deceased, and in favor of said attorneys is hereby rendered in the sum of $1000. (3) The expenditures of S.C. McWilliams, the removed administrator, a *200
shown by his answer, response, and cross-bill in these proceedings, and being up to the time of his removal as administrator, are hereby allowed as just, fair, and reasonable charges against the estate. Let the Plf. Frampton E. Ellis, adm. de bonis non pay $ ____ costs in this proceeding." A motion for a new trial was filed by the administrator de bonis non, which was later amended by adding special grounds. This motion was overruled on May 12, 1943. On July 25, 1943, S.C. McWilliams deposited in the registry of the court the following property: 1 bar pin; 1 cluster ring; 1 silver ring; 1 locket; 1 pendant; 1 watch; 1 solitaire ring; 1 dinner ring; also $650 in cash and a note for $376.50; and received a receipt therefor. The administrator de bonis non assigned error on the overruling of his motion for a new trial.
This proceeding originated in the court of ordinary, wherein S.C. McWilliams, removed administrator, was cited to an accounting and settlement with Frampton E. Ellis, administrator de bonis non. In such a proceeding a citation is all the pleading necessary. In this connection see Brantley v.Greer,
2. Having thus determined the status of the parties by the required pleadings, let us now inquire into the law concerning the procedure and the burden of proof. (a) It is provided in the Code, § 113-1401, that immediately upon the qualification of an administrator, the ordinary shall issue a warrant of appraisement. The next section requires the administrator to make a just and true inventory of the property of the deceased and exhibit the same, if possible, to the appraisers. When the inventory and appraisement are returned to the ordinary, the administrator is required to swear that such inventory contains "a true statement of all the goods and chattels, rights and credits of the deceased, within his hands, possession, or knowledge." It appears from the record that the procedure touching the making of the inventory and the appraisement, and the return thereof to the ordinary, properly sworn to by the administrator, accorded with statutory requirements, and that the inventory and appraisement were properly filed and recorded in the office of the ordinary. This having been shown, while it is not conclusive as to the property belonging to the estate, yet it is prima facie proof as to the property owned by the deceased at the time of his death, and an estimate of the value thereof. If not a true inventory and appraisal, the burden is upon the removed administrator to prove that it is not correct, and to account to the ordinary for the items which he listed and submitted to the appraisers, *202
and which he verified as correct. In Wood v. Brown,
(b) The Code, § 113-1409, requires the administrator to make annual returns. The law requires of him, in his annual returns, that he "shall make a true and just account, upon oath, of his receipts and expenditures in behalf of the estate during the preceding year, together with a note or memorandum of any other fact necessary to the exhibition of the true condition of such estate." This section provides that the returns shall be accompanied by vouchers and receipts. And § 113-1411 provides that if the annual returns are found correct by the ordinary, they shall be allowed and recorded, and they then become prima facie evidence of their correctness, in favor of the administrator. It necessarily follows, as has been many times held, that annual returns which do not substantially comply with the provisions of the law relative to making annual returns are not prima facie proof in favor of the administrator. If they are allowed by the ordinary and recorded, under the terms of the statute, anyone challenging their correctness must carry the burden of proving their incorrectness. Crawford v. Clark,
To the response to the citation, the former administrator attached certain purported returns for the years 1937 to 1941, inclusive. He admitted that since 1936 no attempt was made to make annual returns as required by law. The failure to make proper returns for the allowance and approval of the ordinary was a breach of trust on the part of the former administrator, and the burden rested upon him throughout the trial to make a full and fair accounting, supported by proof, for such years as no annual returns were made and approved. This burden, under the record in this case, applies for all the years since his appointment as administrator, in that there is, according to the record, no approved return for any year. He must account on a basis of the inventory and appraisement, which is prima facie correct. According to the alleged returns for the years 1934, 1935, and 1936, he received in cash and from the sale of certain property, rents, etc., upwards of $3000, and at the end of that time the estate was indebted to him $28.66. His allegations show, for the succeeding years, 1937 to 1941, inclusive, purported receipts of $3670.75, and expenditures of $3003.25, leaving a balance of $667.50 cash, and personality, — jewelry appraised at $150, plus a note for $376.50, making a total of $1194, which he paid into the registry of the superior court, impressed with an unpaid attorney's fee of $1000. This, according to unproved allegations, leaves the estate, appraised at $18,496, with practically no balance to distribute. All the assets, including rental income, were consumed in alleged expenses of administration, taxes, and upkeep. In a proceeding of this kind the law requires the administrator to submit satisfactory proof to the jury. Those who are entitled to this estate have a right to know why so *204 much was spent with no benefit to the estate. There was no evidence to sustain most of the numerous expenditures, as we set forth in the beginning of this opinion. There are certain items of property in the inventory and appraisement, for which there is no attempt to account, even in the response to the citation. There are commissions charged in the face of admissions that no returns were made, as required by law. The jury in their verdict allowed these expenditures to the removed administrator without any evidence at all to sustain them. This they had no lawful right to do. They found that he had not made proper returns, yet in the face of this they gave him credit, without proof, of numerous items of expenditures which consumed the estate, with the exception, perhaps, of a few hundred dollars. The submission of any subsequent unproved statements by the removed administrator would not be sufficient compliance with the law governing the accounting and settlement of a removed administrator; and he could not relieve himself of his trust by filing an unsupported statement subsequently to the unauthorized verdict and judgment thereon. Nor did the depositing into the registry of the court, after the erroneous verdict and judgment, of an arbitrary amount of assets further aid him.
(c) As to the attorneys' fees of $1000, we do not say that when all the facts are properly before the jury, the amount is excessive; but in view of other alleged payments of attorneys' fees, we do think that the jury should know more in detail the occasion for the services, the particular services rendered in each particular case, the occasion for advice, and the inuring benefit of such services to the estate. We are therefore constrained to hold that the judgment should be reversed in its entirety, and the removed administrator required to account in the manner provided by law in such cases.
Since the amended grounds in the motion for a new trial are in the main but an elaboration of the general grounds, we reverse the case on the general grounds, and find no merit in the special grounds, other than as they relate to the general grounds. The court erred, for the reasons above set forth, in refusing to grant a new trial.
Judgment reversed. Broyles, C. J., and MacIntyre, J.,concur. *205
