14 S.E.2d 856 | Ga. | 1941
1. The petition by a legatee, to set aside a default judgment against the executrix, showing that the judgment was against the executrix individually and in her representative capacity, based upon two promissory notes, the individual obligations of the executrix, that the will did not authorize the executrix to execute the notes as obligations of the estate, that she had used funds belonging to the estate to pay on the notes and also to pay on the judgment, and that she had refused upon request by petitioner to institute proceedings to cancel the judgment, and praying for injunction against threatened enforcement of the judgment and for its cancellation, stated a cause of action; and it was error to dismiss the suit on general demurrer.
2. Paragraph 16 of the petition sought recovery of funds belonging to the estate that had been paid on the notes more than four years before the filing of the suit. It was not error to sustain a special demurrer assailing *204 this paragraph on the ground that the claim was barred by the statute of limitations of four years.
On February 27, 1940, Millard H. Higginbotham as a legatee under the will of M. H. Higginbotham, deceased, filed a petition which as amended was against W. H. Adams and Mrs. M. H. Higginbotham individually and as executrix of the estate of M. H. Higginbotham. The amended petition alleges, in substance, that on November 13, 1928, Mrs. M. H. Higginbotham executed to W. H. Adams a promissory note for $653.50 for a model 28-47 Buick sedan, motor number 2057682, signed by her as an individual; that on March 28, 1930, a second note was given to W. H. Adams for $202.58, signed by "Mrs. M. H. Higginbotham, executrix;" that W. H. Adams filed suit on said two notes against Mrs. Higginbotham individually and as executrix; that Mrs. Higginbotham filed no defense either individually or as executrix, and on June 7, 1937, a judgment was rendered in favor of W. H. Adams against Mrs. M. H. Higginbotham individually and as executrix of M. H. Higginbotham, and execution issued on said judgment, copies of the suit and of its exhibits, and of the judgment and the execution, being attached and marked as exhibits; that the note signed by Mrs. Higginbotham with the suffix "executrix" following her signature is her individual obligation, and is not the obligation of the estate, and the executrix had no authority to execute the note on behalf of the estate; that the other note was also an individual obligation and was given by Mrs. Higginbotham for the purchase of a Buick car, and was in no way an obligation of the estate. Paragraph 10 asserts that Mrs. Higginbotham was induced to sign said notes by W. H. Adams. It is further alleged, that on or about September 15, 1939, the M. H. Higginbotham estate sold a tract of land to J. R. Stephens, and $371.52 paid for the land was applied to the execution; that petitioner has requested the executrix to institute proceedings to set aside the judgment against the estate and to recover the $371.52 of the estate's money paid thereon; that she has failed and refused to bring such action; that petitioner as a legatee under the will of M. H. Higginbotham brings this suit to protect his interest as a legatee and the interest of the other legatees of the estate, and to protect the estate; and that W. H. Adams is threatening to levy the execution upon assets belonging to the estate, and will do so unless restrained by the court. The plaintiff seeks recovery of the amounts paid on the notes before judgment, and alleges that such payments were illegal and that Adams received *206 them with knowledge that the executrix had no authority to make such payments.
Demurrers to the petition as amended were filed by W. H. Adams, upon the ground that the allegations are insufficient to authorize the relief sought, and specially to paragraph 16 seeking recovery of $550 paid between 1931 and 1933, on the ground that such payments were made more than four years before the filing of the suit and were barred by the statute of limitations. Judgment was rendered, sustaining the demurrers and dismissing the action, and the plaintiff excepted.
1. The first question encountered is whether the petitioner as a legatee has the right to maintain this action against a third person. The general rule on this subject is that creditors and heirs may sue third persons only in the name of the representative of the estate. Code, § 113-1512;Hardwick v. Thomas,
Permitting a default judgment might be attributable to negligence rather than collusion and fraud, but for the facts that before judgment the executrix had unlawfully applied funds belonging to the estate to her personal debt, and after the judgment she had used the estate's money to make a payment on the judgment, knowing all the time that the obligation was hers, and that she had no right to apply the estate's money to the payment thereof. The bad faith of the creditor is indicated by his seeking a judgment against the estate in a suit setting up only the individual obligation of the executrix without any attempt to allege a reason why the estate should be held liable therefore. If the averments of the petition are *208
true, the creditor could not have made allegations to show liability of the estate. If such allegations had been made and were false, they would have constituted a fraud authorizing a court of equity to set aside the judgment. Hamilton v. Bell,
Certainly it will be understood that we do not mean to intimate that any such fraud or collusion actually existed as a matter of fact. We are dealing only with the allegations of fact in the present petition, which, as indicated above, must be treated as if true for the purpose of decision where considered on demurrer.
2. Paragraph 16 of the petition sought recovery of total payments of $550 on the notes, made more than four years before the filing of the suit. This paragraph was assailed by special demurrer on the ground that it was barred by the statute of limitations. This demurrer was properly sustained. Code, §§ 3-706, 3-711; Cannon v. Lynch,
Judgment reversed in part, and affirmed in part. All theJustices concur.