11 S.E.2d 910 | Ga. | 1940
1. The bill of exceptions is amendable by adding as defendants in error others who were parties in the trial court, and who were represented in that court by attorneys who acknowledged service of the bill of exceptions without a reservation to the effect that the acknowledgment would not apply to such parties.
2. Where a defendant in a suit for interpleader interposed general demurrers to the petition and to an answer and cross-action filed by other defendants, a judgment overruling both of such demurrers is such a judgment as may be reviewed by a direct bill of exceptions under the Code, § 6-701. The motion to amend the bill of exceptions as to parties as just indicated is sustained. After such amendment the motion to dismiss the writ of error is without merit, and is overruled.
3. Under the terms of the will referred to in the petition for interpleader, the bequest in controversy was to vest unconditionally and in fee simple in a named brother of the testatrix upon his claiming such bequest within a stated period; otherwise the bequest would go to a designated church as alternative legatee. The petition alleged that the brother did claim the bequest within the time limited. Accordingly, the title became vested unconditionally in the brother, and the bequest did not pass to the alternative legatee.
4. The Code, § 37-1503, declares that whenever a person shall be possessed of property or funds, or owes a debt or duty, to which more than one person shall lay claim of such a character as to render it doubtful or dangerous for the holder to act, he may apply to equity to compel the claimants to interplead. According to repeated decisions by this court referring to the principle as thus stated, the conflicting claims must be of such character as to justify a reasonable doubt or reasonable apprehension of danger in order that resort may be had to a court of equity. *209
(a) In the instant case, the claims referred to above and the others set forth in the petition did not render it reasonably doubtful or dangerous for the petitioner to act; and consequently the petition did not state a cause of action for the equitable relief of interpleader.
(b) The court erred in overruling the general demurrers to the petition for interpleader, and to the response filed for the church asserting claim to the bequest as against the temporary administrator of the named brother of the testatrix.
The Bank of Dawson, in its petition for interpleader as amended, alleged substantially the following. The will containing the foregoing provision was executed on April 15, 1930. The testatrix, Miss Susie J. Talbot, died on April 25, 1935. The will was probated *210 in common form in the court of ordinary of Terrell County in 1935, and in solemn form in 1938. On September 16, 1936, J. L. Murray, the nominated and qualified executor, deposited in the Bank of Dawson the sum of $10,000 "as directed in said will." The bank accepted the deposit and placed it to the credit of William F. Talbot, the same person as Will Talbot, "to be paid out in accordance with the terms of the will." At the time the will was executed, and until after its probate in solemn form, Will Talbot was absent and his whereabouts were unknown; but in January, 1939, he "appeared and claimed the property given to him in the will." At that time the bank paid to him "on his check" the sum of $1000. Will Talbot was then over seventy years of age, and "drank freely of intoxicating beverages." In June, 1939, he filed a suit against petitioner, to recover the entire balance of the bequest. This suit was afterwards settled and dismissed. In August, 1939, on petition of J. L. Murray and report of a commission finding that Will Talbot was a drunkard and should have a guardian, the ordinary of Terrell County appointed Fred L. Lassiter as guardian for him. In September, 1939, Lassiter, as such guardian, filed a suit against the bank to recover the entire bequest for the estate of his ward, which suit is still pending. After this suit was filed William F. Talbot died, and Lassiter is seeking "to administer said estate without having been appointed as administrator, and without having made bond as such, and is asking that said bank turn over all funds to him as such." Lassiter "is now the temporary administrator of the estate of William F. Talbot, deceased, and claims said estate." The following are known to be "blood kin" of Talbot: Miss Ida Carlton, Miss Willie Mae Kilpatrick, and M. C. Cummings. During his lifetime petitioner paid to Will Talbot $1000 in the year 1939 and $1000 in the year 1940. It now holds the remainder, $8000, as a custodian and stakeholder, and desires that it shall be paid out only upon an order or decree of a court of equity. "The petitioner is advised that the heirs named in this petition are claiming said estate. The petitioner has been advised that the Methodist Church, under its contingent inheritance, has consulted with an attorney as to its rights in the premises, and claims the estate. The petitioner shows that it has been reported to it that in William F. Talbot's lifetime he made, executed, and delivered a will bequeathing to Hon. J. H. Fletcher, ordinary *211 of Terrell County, Georgia, his property. That he will probably claim said funds under the will made by William F. Talbot." The claims of the various parties are in conflict. Petitioner is not in collusion with any of them, and has no interest except to see that the fund is paid to the proper person, and does not know to whom it should be paid. The claims are of such character as to render it doubtful and dangerous for petitioner to act without a decree of court. It prayed that it be protected in paying said fund, without constant litigation and insistent controversy, and that all parties claiming the fund be made defendants. The petition named as defendants: (1) Fred L. Lassiter as guardian for William F. Talbot; (2) Ida Carlton, Willie Mae Kilpatrick, and M. C. Cummings, heirs at law; (3) "the Methodist Church of Dawson, J. P. Perry, chairman of the board of stewards;" (4) J. H. Fletcher.
Other prayers were that the defendants be enjoined from proceeding against the Bank of Dawson in any manner except under this petition, that they be required to interplead as to their respective claims, and that plaintiff have all protection that can be extended by the court under such petition. The prayer for rule nisi referred to "the Methodist Church, J. P. Perry, chairman," etc., as last above quoted, but with respect to the church the prayer for process referred only to "J. P. Perry, chairman of the board of stewards." It does not appear that there was any effort to perfect service upon the church as such, or that it made any appearance by answer or otherwise, only the individuals composing the board of stewards having made any response in its behalf. The court issued a temporary restraining order and rule nisi.
The response filed by J. P. Perry and others as members of the board of stewards was designated by them as an "intervention." In it they answered seriatim the various allegations of the petition, admitting some and denying others, but asserting claim to the fund in question. They later filed an amendment in which they alleged the following: "On or before the appointment of Fred L. Lassiter as administrator of the estate of Will Talbot, J. H. Fletcher as ordinary, who is one of the defendants, had in his possession what purported to be a will of William F. Talbot, in which J. H. Fletcher was named as executor and sole beneficiary. The existence of this will was known to both Fletcher and Lassiter at the time Lassiter applied for appointment as temporary administrator of the *212 estate of Will Talbot, and the appointment of Lassiter was thus obtained by fraud, because (1) it was a fraud on his part to have himself appointed administrator, knowing that there was an outstanding will; (2) Fletcher as ordinary, knowing of the will, had no jurisdiction to appoint Lassiter as such temporary administrator. It is the duty of Fletcher to present the will for probate as provided by law, but he has declined to do so, and withholds "said will from the files of said court of ordinary." Fletcher is disqualified to act as ordinary in probating the will; and there being no city or county court in Terrell County, the clerk of the superior court should exercise jurisdiction to do so. Lassiter was neither a creditor nor a kinsman of Will Talbot. On the basis of these allegations, "intervenors" prayed, that the temporary letters of administration issued to Lassiter be canceled and set aside; that the answer filed by Lassiter in this proceeding be disallowed, and that Fletcher be required to file the will of William F. Talbot for probate; that the sum held by the bank be impounded for disbursement on order and direction of the court; and that a receiver be appointed to take charge of the same.
Fred L. Lassiter, "as guardian and ex officio administrator of the estate of William F. Talbot," demurred generally and specially to the petition of the Bank of Dawson, and in the same capacity renewed his demurrer to the petition as amended. In the same capacity he demurred generally and specially to the answer or "intervention" by Perry and others as stewards of the Methodist Church; but after an amendment was filed by these parties he renewed his demurrer to the answer or intervention as amended, doing so "as temporary administrator of the estate of William F. Talbot deceased." He filed an answer in which he referred to himself as acting in both capacities. The court overruled the demurrers on all grounds, and in the order referred to the case as that of "Bank of Dawson, Dawson, Ga., vs. Fred L. Lassiter as temporary administrator of the estate of Wm. F. Talbot et al." The order also described each of the demurrers, original and renewal, as having been filed by "the defendant Fred L. Lassiter as temporary administrator of the estate of Wm. F. Talbot." To the judgment overruling such demurrers Fred L. Lassiter, as temporary administrator, excepted. No question has been raised by any party as to the propriety of the exception by Lassiter in such capacity, in *213
conformity with the judgment. In the bill of exceptions the plaintiff in error named as one of the defendants in error "the Dawson Methodist Church, of Dawson, Georgia." He also named as defendants in error all persons who were designated as defendants in the original petition, except "J. P. Perry, chairman of the board of stewards of the Methodist Church;" nor did he name as defendants in error any of the members of the board of stewards who filed response to the petition for interpleader. J. P. Perry and the other members of the board filed in this court a motion to dismiss the writ of error, on the following grounds. (a) The Dawson Methodist Church is not a legal entity. (b) The judgment overruling a demurrer to an intervention is not reviewable by a direct bill of exceptions. (c) Lassiter having been illegally appointed as temporary administrator, his appointment is void, and he has no right to maintain the writ of error. (d) Lassiter as such temporary administrator is not an aggrieved party, has no ground of complaint, and is not privileged to bring for review the correctness of the judgment overruling his "demurrer to the intervention." Whereupon Fred L. Lassiter, as temporary administrator, plaintiff in error, moved to amend the bill of exceptions by adding thereto as defendants in error each and all of the individuals, naming them, who had made appearance in the court below as members of the board of stewards of the Methodist Church of Dawson, Georgia. In the proffered amendment it was alleged that the same attorneys who appeared in the trial as attorneys for these individuals had acknowledged service of the bill of exceptions, and had signed such acknowledgment as "attorneys for the Dawson Methodist Church, defendant in error;" all of which appears from the bill of exceptions and the record to be true as alleged.
1. In view of the amendment offered by the plaintiff in error for the purpose of naming additional parties as defendants in error, there is no merit in the first ground of the motion to dismiss the writ of error. So far as the Dawson Methodist Church is concerned, the petition prayed for process only against J. P. Perry as chairman of the board of stewards; the church as such was not served, and did not appear by answer or *214
otherwise, appearance having been made only by Perry and other individuals composing the board of stewards. Accordingly, the Methodist Church as such was not made a party in the trial court, and did not become a party therein. Code, § 81-101; J. K. OrrShoe Co. v. Kimbrough,
2. There is no merit in the ground of the motion to dismiss based on the theory that a direct bill of exceptions will not lie to the overruling of a demurrer to an intervention. The movants in this motion were not intervenors in the court below, notwithstanding they so designated themselves in their response to the petition for interpleader. They stated they were appearing "in response to a rule nisi" issued by the judge on the original petition for interpleader, and they became parties defendant to that proceeding. Lassiter as temporary administrator assigned error in his bill of exceptions, not only upon the order overruling his demurrer to the amended answer or cross-action of these defendants, but also upon *216
the overruling of his demurrer to the petition as amended; and both rulings together constituted basis for a direct bill of exceptions, under the Code, § 6-701. Compare American Legion v.Miller,
3. Treating the demurrers as having been filed by Fred L. Lassiter in his capacity as temporary administrator, as they were finally treated by the parties and the court, as shown by the judgment to which Lassiter excepted in such capacity, we approach the question whether the court erred in overruling such demurrers. Since the answer of the stewards of the Methodist Church laid claim to the fund in controversy and the demurrer thereto was overruled, a construction of the will of Miss Talbot would seem to be necessary, regardless of whether the petition of the bank as amended stated a cause of action for the relief of interpleader, or was insufficient for that purpose. Accordingly, we will deal first with that question. "A will shall take effect instantly upon the death of the testator, however long the probate may be postponed." Code, § 113-105. "In the construction of all legacies, the court shall seek diligently for the intention of the testator and give effect to the same as far as it may be consistent with the rules of law; and to this end the court may transpose sentences or clauses, and change connecting conjunctions, or even supply omitted words in cases where the clause as it stands is unintelligible or inoperative, and the proof of intention is clear and unquestionable; but if the clause as it stands may have effect, it will be so construed, however well satisfied the court may be of a different testamentary intention." § 113-806. The law inclines to construe conditions to be subsequent rather than precedent, and favors the holding of estates to be vested rather than contingent, in cases of doubt. §§ 85-902, 85-708; Cooper v. Mitchell Investment Co.,
It appeared that at the time the will was executed this brother of the testatrix was absent, and his whereabouts were unknown. Manifestly it was the desire of the testatrix that he should have this sum; and so positive was this desire that she provided that he might claim it at any time within fourteen years, even allowing this period after probate of the will in solemn form. She did not intend that he should lay repeated claims year by year, but provided simply that he should claim the bequest within the time stated, meaning thereby a single claim. She did direct that the sum should be paid to him in ten annual instalments of $1000 each; but the only condition was that he shall claim "this bequest," not that he should claim the various instalments one by one. The provision in the will, "said bank to make said payments upon the check of the said Will Talbot," was not stated as any kind of condition, but was a mere direction to the bank as to the manner of payment, and, whether valid or invalid, did not affect the vesting. See Perkins v. Citizens Southern National Bank,
Since the title to the bequest vested absolutely in Will Talbot in accordance with the terms and provisions of the will, the Dawson Methodist Church has no claim whatever to this bequest or any part of it in virtue of the will. The court erred in overruling the demurrer to the answer and cross-action filed in its behalf by the members of the board of stewards. Since the members of the board of stewards had no interest in the subject-matter of the controversy, they were not in position to question the validity of the appointment of Lassiter as temporary administrator of the estate of William F. Talbot, or to contest in any manner the claim asserted by him. As will be shown later in this opinion, however, Lassiter as such administrator did have an interest to maintain, provided his appointment was valid; and in this case it was not attacked by any one who might have had the right to do so. Nor, in view of the fact that the members of the board of stewards were entirely without interest in the estate of William F. Talbot, were they entitled to be heard on their prayer as to probate of his will, or as to other matter set forth in their answer or cross-action. Consequently their entire response as amended should have been stricken on the general demurrer of Lassiter as temporary administrator.
4. Three other claims or possible claims are referred to in the petition. One is the Lassiter claim, which he first asserted as guardian of William F. Talbot, but it is alleged in the petition as *219
amended that Lassiter "is now the temporary administrator of the estate of William F. Talbot, deceased, and claims said estate." The petition also alleges that "the heirs named in this petition are claiming said estate." This refers to Misses Carlton and Kilpatrick, and M. C. Cummings, who were otherwise mentioned in the petition as the "blood kin" of Talbot. The third claim, or possible claim, is that of J. H. Fletcher, as to whom the petition makes these averments, and these only: "The petitioner shows that it has been reported to it that in William F. Talbot's lifetime he made, executed, and declared a will bequeathing to the Hon. J. H. Fletcher, ordinary of Terrell County, Georgia, his property. That he will probably claim said fund under the will made by William F. Talbot." It will be noticed that all of these claims or possible claims would treat the bequest as belonging to the estate of William F. Talbot, deceased, and to this extent they are consistent with the ruling which we have just made as to the meaning of the will of Miss Susie J. Talbot. They are based on the theory that the whole bequest became the property of William F. Talbot, is now a part of his estate, and does not go the Methodist Church. We will now discuss these several claims, though in a different order from that in which they have just been stated. The bank could not properly pay this fund to the heirs at law, because the right of action would be in the legal representative of William F. Talbot, either an executor or an administrator. Brown v. Mutual Life Insurance Co.,
Now, as to the Lassiter claim. "The ordinary may at any time grant temporary letters of administration upon any unrepresented estate, for the purpose of collecting and taking care of the effects of the deceased, to continue and have effect until permanent letters are granted; and from the order granting temporary letters there shall be no appeal." Code, § 113-1207. Any such person so appointed shall give "good and sufficient bond, with security, for double the amount of all the personal property belonging to the estate, other than real estate." § 113-1221. "A temporary administrator may sue for the collection of debts or for personal property of the intestate. If a permanent administrator shall be appointed pending the action, he may be made a party in lieu of the temporary administrator." § 113-1511. See Irvine v. Wiley,
In view of the foregoing analysis of the several claims, what should now be said as to the sufficiency of the petition as a suit for the equitable relief of interpleader? The petition can not be sustained as a proceeding "in the nature of an interpleader," since it does not claim any affirmative relief as to an interest claimed by the petitioner. Phillips v. Kelly,
Several decisions have been cited by counsel for the bank and for other parties, for the purpose of sustaining the proposition that the petition here is maintainable, at least to avoid a multiplicity of actions; and we are requested to review and overrule some of the decisions which we have just cited in support of the proposition that such a suit is not maintainable unless there is reasonable doubt or danger. We think the decisions are in unison in recognizing such prerequisites, and to this extent they are all consistent with the principle as stated in the Code. Whether or not the principle has been correctly applied in all the cases, we think there is no precedent which would require a different conclusion in the present case; and therefore the request to review and overrule is denied. The petition as amended showed a clear liability and duty on the part of the bank to pay the fund to Lassiter as temporary administrator; and consequently it did not state a cause of action to compel the several claimants to interplead. The court erred in overruling the general demurrer to the petition. The case differs somewhat from suits for direction, brought by representatives of estates, under the Code, § 37-404.
Judgment reversed. All the Justices concur.