179 Ga. 547 | Ga. | 1934
On November 2, 1932, John J. Evans Jr., as trustee in bankruptcy of Sarah Gillman, brought suit in equity
The defendants answered the petition, and denied that Sarah Gillman had, on June 27, 1932, when she was adjudged a bankrupt, any interest that could pass to her trustee in bankruptcy. They averred that the debts of her father exceeded the value of his property by $17,000; that there was no residue of his estate, after the payment of his debts, to pass under his will; and that the plaintiff has not become vested with any remainder interest of Sarah Gill-man, as she had no interest, but that the mother was the owner of the realty specified, under an agreement with her children that she should have the same if she paid off the debts of their father, Jake Sawilowsky; and this she had done. To this answer the plaintiff filed general and special demurrers. The defendants filed amendments, in which it was alleged that the agreement between the children of Jake Sawilowsky and their mother, Eosa Sawilowsky, whereby the children sold and agreed to convey to her their inter
The plaintiff demurred to the answer as amended, as setting up no defense, and on numerous special grounds, which were overruled. The plaintiff introduced in evidence the will of Jake Sawilowsky, devising the “residue” of his estate, after payment of debts and legacies, to his wife for life, with remainder to his ten children, of whom Sarah Gillman was one, and the assent of the executrix to the legacies. The plaintiff claimed that as a result the title to the “residue” passed to Eosa Sawilowsky for life, with remainder in fee to ten children, Sarah Gillman’s part.being one tenth. The plaintiff put in evidence the inventory showing that the realty mentioned in the petition had been appraised at $15,500; also evidence of the existence of sundry creditors of Sarah Gillman, including a judgment for $1200 obtained by Mrs. Bush, being a deficiency judgment for a loan of $3,000 obtained by Sarah Gillman from Mrs. Bush on sundry real estate; and evidence of the real-estate agents who negotiated the loan, that it was mentioned to them when so negotiating that “Mrs. Gillman was an heir to an estate that we understood consisted of quite a sum of money, the Sawilowsky estate. Mr. Sawilowsky was her father. Mr. Gillman was a man of good credit,” etc. No assignment of Mrs. Gillman’s interest in the Sawilowsky estate was asked, the loan being made strictly on certain specified property of Mrs. Gillman. Mr. Bush, agent of Mrs.
The court properly overruled the general demurrer to the petition; and the special demurrers, so far as meritorious, were sufficiently met by amendments.
The auditor made a general finding that under the evidence the life-estate of Rosa Sawilowsky did not come to an end for any cause; that there was no evidence of her age or expectancy of life, or of any possession by Sarah Gillman of any property, or of any illegal transfer by Sarah Gillman of any property interest that put a cloud upon the title of plaintiff as claimed; that no fraud was proved, nor was there any evidence of any “residue” of the estate of Jake Sawilowsky remaining after the payment of debts and legacies. The auditor secondly ruled that the plaintiff did not prove his case as laid; that he did not show any illegal action by either defendant, or any illegal transfer by Sarah Gillman that could be set aside under the bankruptcy act, or that was a cloud upon his title, but claimed that the executrix must account to him for all her acts as executrix and individually, “so that there will show as of the date of bankruptcy adjudication of Mrs. Sarah Gillman, June 22, 1932, the title, right, and interest of said latter defendant as remainderman, and consequently of plaintiff, in the realty described.” No exception was expressly taken to this second ruling; and the defendants insist that that finding made a disposition of the case adversely to the plaintiff. In this contention we do not concur. This was merely a broad, general ruling, which in a certain sense sums up the finding of the auditor, which was followed up by more specific rulings to which exceptions were duly taken, and these should be passed on.
The principal question relating to the controlling issue in the case is, whether or not the children of Jake Sawilowsky and his wife, Rosa Sawilowsky, made, at the time they insisted it was made, the agreement with their mother that she should have the entire interest in the estate of their deceased father if she would pay the debts of the estate. On that issue the defendants introduced a deed executed on October 4, 1932, in which the children conveyed to their mother all their right, title, interest, and equity in the property (describing it) belonging to the estate of their deceased father. They also introduced evidence to show that several years prior to
It also appeared from the bank book, canceled checks, etc., of Eosa Sawilowsky, and from letters from the insurance company, and deposits in the bank, that Eosa Sawilowsky had her own individual property and funds of her own, including some $12,000. insurance money paid to her individually after the death of her husband, and was personally financially able to pay from her own property the debts of Jake Sawilowsky, as she had agreed with her children to do under the family agreement made about January 3, 1928, and that she did so. The evidence showed that the contract claimed to have been made between the mother and children as to the payment of the debts of the estate has been made and carried out. This evidence sustains the deed made October 4, 1932, by the children to their mother, by which they formally conveyed to her the real estate in question in pursuance of their verbal contract with her. She was in possession of the whole property, and the deed conveyed to her the undivided interest of Jake Sawilowsky in the several pieces of property, the other undivided interest being already her individual property.
Under the evidence the auditor was authorized to find as a fact that the payments made by Mrs. Eosa Sawilowsky, under the verbal contract between herself and her children, and with her money, were not voluntary payments, but were for the consideration named in the contract and specified in the deed of October 4, 1932. The plaintiff did not charge fraud, and did not offer evidence tending to dispute the truth of the contract between the mother and children, set forth in the deed of October 4, 1932, and supplemented by evidence corroborating the testimony of Mrs. Shmerling. The auditor also found that Sarah Gillman was a party to the contract and was bound thereby. The contract was consummated in the year 1928, and became conclusive upon Mrs. Gillman before she went into bankruptcy in June, 1932. The auditor further found: “The
The finding of fact just referred to justified the holding of the auditor in regard to the validity of the agreement and of the deed referred to. These findings of fact which were authorized by the evidence necessarily resulted in the holding, under the law, that title to the entire estate, after performance by Mrs. Sawilowsky in
Under the pleadings and the evidence, the defendant was not put to election as to whether she would rely on an equitable or legal title, or that the estate of Jake Sawilowsky owed her for money paid, and the entire estate (except certain legacies) should be held to be hers. No question of the election of defenses was involved.
Judgment affirmed.