179 Ga. 840 | Ga. | 1934
These companion ejectment eases were tried together. The controlling issues are the same in all of them. On the trial the court directed verdicts for the plaintiffs, and the cases are here on exceptions to the overruling of motions for new trial.
John Morrow died testate about the year 1875. He had no near relative except a brother from whom he was estranged. In his will he stated that he was not willing that this brother “should enjoy the benefits of my years of toil,” and, giving this as a reason for
While the essential issues in the cases are the same, the actual differences should, perhaps, be stated: The entire realty covered by the will of John Morrow consisted of a lot of land comprising about 250 acres. In case No. 10116, it appears that Warren Morrow became indebted to C. P. Jackson, and to secure the claim made to
Three minor points made in the motions for new trial should perhaps be decided before we proceed to a consideration of the merits of the cases. One is that there was no evidence that Josephine Franklin ever qualified as executrix, and no letters testamentary were introduced. Failure to show authority on the part of the executrix to participate as a claimant is accordingly insisted on. 'It is of course true that one is not in fact an executor until'he has qualified; but the record here discloses proper probate of the will which nominated Josephine Franklin executrix, this probate being procured on petition of Josephine Franklin. The order establishing the will and admitting it to record gives the named executrix leave to qualify, and directs that on so doing she shall have letters testamentary issued to her. The original petition filed in the court below lays a demise from Josephine Franklin “as executrix of the last will and testament of Warren Henry Morrow.” This we hold to be the equivalent of a direct allegation that she was in fact such executrix. And nowhere in the pleadings filed by the defendants is there any denial of this, or any claim that she was not entitled to be recognized as a real claimant because she had not qualified as executrix. The allegation at the end of paragraph 9 of the amended answer, that “this defendant does not admit that the said W. H. Morrow has executed any will wherein he has nominated Josephine
Another point goes to the rejection from evidence of certain verbal statements made by "Warren Morrow at the time of the execution of his will. This testimony was properly excluded. It was antagonistic to the terms of the will) and there was no issue as to the legality of the latter. Another is to the rejection of another alleged will of Warren Morrow. This paper was never probated, and nothing stated in it was of probative value on the trial of these ejectment cases. The court did not err in rejecting it.
Defendants, in addition to the general plea of not guilty, pleaded that Warren Morrow had been seized of the fee, and that his deeds were accordingly good; also, more than seven years possession under color of title as against Warren Morrow and the trustee. A further defense of an equitable nature was presented. This will be referred to later. As to the first proposition, it is clear that there was no fee in Warren Morrow after Mariah’s death. The words in item 7, “in the event that Mariah Morrow or Warren Henry Morrow should either die leaving no heirs, then the surviving one to have the whole interest arising in this will,” must be construed with the entire will. The remainder estate which the testator contemplated should vest when the survivor of Mariah and Warren was dead was not disposed of by the will. On the contrary, power to designate by will the final takers of this remainder in fee was expressly given to the survivor by this item. We have carefully considered the eases cited by counsel, and there is nothing in any of them which requires conclusions other than those we have reached in the instant cases.
As to the second defense, we hold that there was enough for the trustee here to do (Gray v. Obear, 54 Ga. 231) to prevent the trust from being executed under the Code, § 3737, on John Morrow’s death. The death of the trustee did not affect the validity of the trust estate. Further, the trust did not extend to the remainder. The bequest is expressly (item 3) to the trustee for Mariah and Warren; and as their interests were to end when both were dead, the trust could extend no further than that. These facts being •true, there can be no prescription which bars the final remainder-men. Seven years have not yet elapsed since Warren’s death.
With reference to another point raised by plaintiffs in error, we hold that the phrase in item 7, “that during the lives of said Mariah and Warren Henry Morrow they are never to have or dispose of any part of the lands,” covered a period which did not end when Mariah died, but extended further until Warren’s death and prevented him from disposing of the land during the years which elapsed between Mariah’s death and his own. In reaching this conclusion we are not altering the will by construction and the insertion of new phrases. We are merely giving effect to what we believe to be the true underlying intent of John Morrow as expressed by him. Being estranged from his brother and having no other near relative, he wanted these old slaves who had nursed and served him with fidelity in his declining years (item 2) to have the benefit of the use and earnings of his property as long as either of them lived. He knew that if he gave it to them outright, they would in all probability lose it and defeat the primary object he had in view: provision of a secure home and a certain income for both of them. They, during their joint lives and the life of the ■survivor, were the primary objects of his bounty; but at the death of the surivivor the primary objects being satisfied, he cared noth
We come now to a consideration of the equitable defense interposed in the court below. We should perhaps state that while the pleas and cross-actions contain no specific prayers which ask relief exactly in line with our conclusions, the relief to which we have decided the defendants below were entitled can be granted under the general prayers. The defense in point is to the effect that Warren Morrow’s estate is insolvent if the lands be held to be no part of it, that the indebtedness arose after the death of John Morrow, and “that the land described in the deed . . was and is subject to the indebtedness due by the said W. H. Morrow, colored, and avers that a court of equity would have applied all the lands devised by the will of John Morrow to the payment of the debts of W. H. Morrow.” This quotation is from the pleas and cross-actions. The averment is also made that the appointees of Warren are volunteers; and we take all these allegations together with others in the same pleadings to be sufficient to authorize, under the prayers for general relief, the judgments we have, decided should be rendered, although the specific prayers relate mainly to a decree of estoppel and confirmation of the deeds Warren Morrow had made, to neither of which do we think the defendants entitled. In considering this equitable defense we are confronted with two separate principles which are aptly stated as follows: “It is very
But the second rule quoted from Corpus Juris enunciates an English doctrine which has now been followed by the great weight of American authority. It is an equitable principle which, if adopted, results in a conclusion entirety at variance from that which naturally follows from an application of the other. The rule quoted from Corpus Juris has been made the subject of a
In support of the conclusion here reached we refer to the cases from the U. S. Supreme Court, other Federal Courts, Delaware, District of Columbia, Illinois, Maryland, Massachusetts, New Hampshire, New Jersey, New York, North Carolina, Texas, Virginia, and England, cited in 59 A. L. R. 1510. As the author there states, there seems to be little opposing authority, although the rule has been severely criticized in several States. We have carefully considered the opposing views, and have decided that the one expressed by the majority rule above set out should be adopted
The cases at bar proceeded to trial below on two' theories: first, that the lands sued for belonged generally to the estate of Warren Morrow (joining the executrix as party plaintiff can mean nothing else); and second, that it belonged to the appointees under Warren’s will. Neither theory is correct. The appointees were not proper parties plaintiff. They have no present right to recover the lands, and will never have any right to any part of them, unless it should finally be shown that it is not necessary for the executor to sell 'all the lands to secure the funds necessary for .the payment of the debts of Warren Morrow. While the executrix had no right, on the record now before us, to recover the lands as general assets of the estate of Warren Morrow, we think that the course indicated in U. S. v. Field, supra, should be adopted. The executrix should recover the land and administer it, so far as may be necessary for the payment of the creditors; this “as a matter of convenience, and because she represents the rights of creditors, and not generally by virtue of her office.” Her right goes no further than this, and the decree entered should have so specified. For the convenience of
1. The security deed to the 100 acres executed by Warren Morrow to C. P. Jackson, the deed under power from Jackson as attorney in fact to Ware, and the deed from Ware to Jackson were void. Warren had no estate of any kind in the lands covered by these deeds.
2. Jackson, on the present record, is an unsecured creditor of Warren Morrow’s estate to the amount of the principal and interest of the notes given him by Warren, less the reasonable value of the net rental of the land of which he took possession, from the time of taking possession.
3. The warranty deed to the 50 acres executed by Warren Morrow to Jackson and the deed to the same land from Jackson to Mrs. Jackson were void. When possession of this 50-acre tract is secured by the executrix, there will be a breach of Warren Morrow’s warranty, and this breach will make Jackson and/or Mrs. Jackson a creditor of his estate to the extent of the actual purchase-money paid to Warren, with or without interest, adjusted as indicated by the Code, § 4400.
4. The warranty deed to the 35.45 acres executed by Warren Morrow to J. C. Williams and the quitclaim deed from Williams to John T. Huff to the same land conveyed no title. The quitclaim deed passed on to Iiuif the warranty of Warren in his deed to Williams (the warranty being to Williams and his assigns), and therefore, on breach, John T. Huff will be a creditor of Warren’s estate to the amount of the purchase-money paid by Williams to Warren Morrow. Interest to be dealt with as stated in paragraph 3 above.
5. The warranty deed from Warren Morrow to T. R. and W. H. Powell to 54.55 acres, the deed from Powell and Mrs. Powell as executor to Huff, and the deed from Huff to Mrs. Nina Roberts Iiuif conveyed no title, but the breach of Warren Morrow’s warranty is to be treated in the same way as the foregoing.
We have carefully considered all the grounds set out in the motions for a new trial, and do not deem it necessary to pass specifically upon any points made other than those hereinabove decided. The judgments are affirmed on condition that on the return of the remittiturs, and before the judgments of this court are made the judgments of the court below, the plaintiff John Doe will amend
Judgments affirmed on condition.