172 Ga. 598 | Ga. | 1931
Mrs. Annie C. Johnstone, in behalf of herself and such other heirs at law of Charles Minor Morris, deceased, as might come in and be made parties thereto, filed in DeKalb superior court on February 11, 1930, her equitable petition against Charles B. Morris, Lucius M. Morris, and the National Surety Company, in which she alleged that Charles Minor Morris died in DeKalb County, Georgia, on October 6, 1902, leaving as his surviving heirs his widow, five named sons, and six named daughters, petitioner being one of the daughters. In her petition she makes other allegations which appear in the opinion hereinafter. She prayed that the judgment of the ordinary discharging the defendants as administrators be set aside; that the defendant be required to make a fair, full, and complete accounting and settlement of said estate; that the court adjudge the true amount due from the estate and the administrators thereof to her as an heir at law of the deceased; and that she have all other and further meet and equitable relief; The administrators demurred to the petition, upon the grounds, among others, (1) that it did not set up a cause of action; (2) that it shows on its face such laches as to forever bar the plaintiff from the relief prayed; (3) that petitioner is barred by the statute of limitations as against defendants, in that the petition alleges a cause of action, if any, which arose on July 8, 1905, whereas the suit was filed February 11, 1930. On July 19, 1930, the court overruled the demurrer to the petition; and to that judgment the administrators excepted.
On November 6, 1904, the administrators sold the 16-acre home •place of the deceased for a cash consideration of $10,500. If the same had been fairly sold, the administrators could have sold the same for $25,000. They arranged with' the widow of the intestate to bid in said property, and the same was knocked off to her at the above price. This sale was brought about by fraudulent collusion between the administrators and Mrs. Morris, and was in effect a sale to the administrators themselves. After having thus fraudulently acquired the control of said property, the administrators subdivided a large part thereof into 70 lots, which they sold off from time to time at the price of $1,250 to $3,000 per lot, realizing for themselves a profit of $50,000 or other large sum. On' March 18, 1903, the administrators sold the Decatur Street property of the intestate, and procured the widow to bid the same in at said sale, and the same was conveyed to her for $53,000. If the sale had been fairly conducted, it would have brought the sum of $80,000. In 1922 the administrators called a meeting of the heirs of the estate, and at that meeting represented to the heirs that there was left in the estate unadministered and unsold the Decatur Street property and a large part of the'16-acre home place, that these two pieces of valuable property were unincumbered, and that all the debts of the estate had been paid. They proposed to form a corporation for the purpose of taking over said property, and in case any of the heirs did not desire to take stock in the company they would arrange to have their stock taken over and pay any heir who did not desire the stock. The administrators at this meeting concealed from the heirs present that the Decatur Street property had been sold in 1903, and had been subsequently heavily mortgaged; and
About the year 1910 the administrators reported to the husband of petitioner that they had paid all the debts of the estate, and that they would soon thereafter be ready to distribute the estate among the heirs. Again in 1910, and for a number of years thereafter until 1922-, the administrators promised from time to time to make a final distribution, but from year to year postponed the same upon the plea that they had not yet been able to complete all the details of the administration. The administrators paid to petitioner on her share in said estate $570 in November, 1911, $1,200 about April, 1912, $1,000 in May, 1913, and $250 in April, 1927, after they had been discharged. On August 16, 1923, the administrators represented to the ordinary that they had settled with all the heirs of the deceased except petitioner and Emory H. Morris, and that they had reserved a sufficiency of the property of the estate to settle with them.
On March 30, 1923, the National Surety Company filed with the ordinary its petition alleging that the administrators had filed no returns, and that it could not determine the condition of tile
Petitioner did not sooner discover the fraud practiced upon her by the administrators, for the following reasons: There existed a fiduciary relation between herself and the administrators, and confidential relations between herself and Charles E. Morris, one of the administrators, in that she followed his advice in respect to her personal affairs not connected with the estate, that she deferred to his advice in such matters, and that her relations with the administrators, who were her brothers, were always pleasant and cordial, and she placed implicit faith and confidence in them, and had such faith in their fidelity that it never occurred to her to question their fairness and square dealing in administering the estate of their father. During a number of years while said estate was in the hands of the administrators, petitioner lived outside of this State and at a distance which limited her intercourse, with the administrators, and kept her from being in touch with local events and conditions. In May, 1922, the husband of petitioner at her request wrote to Charles E. Morris for information touching the condition of the estate and the winding up thereof, and in reply this administrator wrote that it would be the greatest pleasure of his life to close out the remainder of the estate just as speedily as possible, and that he trusted that this could be done within 60 days. He wrote that there were some things to be considered before so doing, that he referred in particular to the store property, which was the valuable Decatur Street property, that he had done his utmost for 15 years to sell this property in order that matters might be facilitated, that there were one or two things that could be done with the property, that one was to hold an auction sale of it and sell it for what it would bring, or to divide it among the heirs, that he had never been able to free the estate of all debts, and that he believed they could sell the unsold lots, into which the home place had been divided, without auction and during the summer months. In reply to the question what amount would be coming to petitioner, this administrator wrote that it depended on what the property now on hand would bring. He then promised he would get busy and sell the same.
An administrator occupies a position of the highest trust and - confidence to heirs at law; and is required to act in entire good faith
If administrators have been guilty of a fraud by which the-plaintiff has been debarred or deterred from her action, the period of limitation shall run only from the time of the discovery of the fraud. Civil Code (1910), § 4380. The fraud here referred to, which will remove the bar of the statute of limitations, must be
But there is another reason why we think that the demurrer which raised the question of the statute of limitations was properly overruled. At various times between 1910 and 1922 the administrators promised petitioner to make a final distribution,' but from year to year postponed the same upon the plea that they had not been able to complete all the details of the administration.
It thus appears that the administrators at the above dates treated the trust which they were administering as still existing; and the present suit was brought within the period of 20 years from the date of each of the above acts of the administrators and from the date of their statements that they were undertaking to wind up the administration of the estate and in which they treated their trust as still existing. So we are of the opinion that by reason of these facts the trial judge did not err in overruling the demurrer to the petition. One of the purposes of this suit is to set aside the judgment of the court of ordinary discharging the administrators, upon the ground that such judgment was obtained by fraud perpetrated upon the ordinary and upon the heirs. A judgment of the court of ordinary discharging administrators may be impeached in that court for irregularity, or in the superior court for fraud. Jacobs v. Pou, 18 Ga. 346; Pass v. Pass, 98 Ga. 791 (25 S. E. 752); Davis v. Albritton, 127 Ga. 517 (56 S. E. 514, 8 L. R. A. (N. S.) 820, 119 Am. St. R. 352); Ford v. Clarke, 129 Ga. 293 (58 S. E. 818); Singer v. Middleton, 135 Ga. 825 (70 S. E. 662); Seagraves v. Powell Co., 143 Ga. 572 (2) (85 S. E. 760). As a general rule, a judgment of a court of competent jurisdiction can not be collaterally attacked for fraud.. The statute has made an exception in the case of a judgment of discharge procured by an administrator by fraud practiced on the heirs or the ordinary. Civil Code (1910), § 4091; Knox v. Raynor, 146 Ga. 146 (90 S. E. 853)., The superior court in the exercise of its equitable jurisdiction may set aside a judgment of a court of ordinary, upon proper allegation and proof. The party seeking the relief is not compelled to move to set aside the judgment in the court of ordinary. Lester v. Reynolds, 144 Ga. 143 (2), 144 (86 S. E. 321); Wash v. Wash, 145 Ga. 405 (89 S. E. 364). The facts alleged in the petition to impeach the judgment of discharge were sufficient for that purpose,
Judgment affirmed.