31 S.E.2d 786 | Ga. | 1944
1. Where the will gives the executor power of disposal, both as executor and beneficiary, he may borrow money and secure the payment of the same by creating a lien upon property belonging to the estate.
(a) A judgment of the court of ordinary being alleged in the petition without an attack being made on it, it will be presumed that every fact necessary to make the judgment valid and binding was before the court.
(b) The mere allegation that a deed was procured by fraud or as the result of a fraudulent scheme is not sufficient when the point is raised by demurrer.
2. Courts of equity and the court of ordinary have concurrent jurisdiction of suits for accounting against executors and administrators.
3. The motion to modify or overrule a former decision of this court, under the facts of this case, is denied.
The prayers were for an injunction and receiver; that equity "assume complete jurisdiction of the properties belonging to Dr. Hunt's and Mrs. Hunt's estates, including specifically that described in this bill, and adjudicate the titles and distribute the same by sale or partitioning;" for an accounting; that "a decree be entered declaring the conveyance from B. Lawrence Hunt to Miss Bessie Butler, in her individual capacity, to be a conveyance and quitclaim back to her as executrix of Dr. B. W. Hunt;" and for general relief.
The trial court sustained a general demurrer to the petition and dismissed the same. The exception is to this judgment.
1. The two wills referred to in the foregoing statement of facts have been construed by this court in Butler
v. Prudden,
"(a) There is no repugnancy in the provisions of the will.
"(b) The husband did not take an unconditional fee-simple estate.
"(c) As to property not disposed of under the general power or by will, the bodily heirs of Prudden and the heirs at law of the testatrix's husband would take the fee in remainder by purchase, under this will." As to the will of Dr. B. W. Hunt it was said: "The devise of `all my estate' refers to the individual estate of the testator, and is not referable to the power of disposal by will conferred upon him in the will of Mrs. Hunt."
It is clear, under the terms of the will of Mrs. Louise P. Hunt as construed by this court in Butler v. Prudden, supra, that Dr. Hunt had authority to borrow money and to secure the payment of the same by creating a lien on the property belonging to the estate of Mrs. Louise P. Hunt. "The authority to contract debts carries the authority to secure the payment of those debts by liens or otherwise." Ferris v. Van Ingen,
There is an averment in the petition that the transaction, by virtue of which the quitclaim deed was executed by Miss Bessie Butler as executrix of the estate of Dr. B. W. Hunt to B. Lawrence Hunt, and the property more than three years later was deeded by B. Lawrence Hunt to Miss Bessie Butler in her individual capacity, was a fraudulent scheme by which Miss Bessie Butler obtained title to the property, This is simply a general allegation of fraud, without any allegation of fact whatever to support such a charge. "The mere allegation that the note and deed were procured by fraud was insufficient to meet the demurrer upon that point." Wilder v. Federal Land Bank,
2. The petition prayed for an accounting as to rents collected and other personal property. Whether or not the petition should have been dismissed on general demurrer in the face of this prayer for accounting, is a question about which the decisions of this court are not in harmony. In Evans v. Pennington,
However, it was said in Ewing v. Moses,
The ruling in Ewing v. Moses, supra, has been followed inStrickland v. Strickland,
From what has been said above, it follows that the sustaining of the general demurrer was error.
3. There appears in the record in this case what is denominated "Motion to review former decision and for permission to amend original brief filed by plaintiff in error." The motion calls attention to the following language in Butler v.Prudden, supra: "As to property not disposed of under the general power or by will, the bodily heirs of Prudden and the heirs at law of the testatrix's husband would take the fee in remainder by purchase, under this will." It is then contended that this language is "obiter dictum." The prayer of the motion is as follows: "Wherefore, plaintiff in error moves the court to review said former decision, and either affirm the principle there stated, or modify the opinion and ruling therein made in accordance with the issues herein presented; *457 and she prays that she may amend her brief for the purpose of this motion." There is no necessity for a motion to "modify or review" a decision of this court on the general ground that certain language is obiter dictum, for the reason that, if this should be true, the language would not be binding authority. If this motion be considered as one to overrule the decision referred to, it may be said that the plaintiff in the instant case was there one of the plaintiffs. The defendant was Miss Bessie Butler as executrix of the estate of Dr. B. W. Hunt. The defendant, as she had a right to do in that case, sought a construction of both the will of Mrs. Louise P. Hunt and the will of Dr. B. W. Hunt. The language complained of in that opinion does not, therefore, appear to be obiter dictum, and further appears to be a correct construction of the will under consideration. Therefore the motion to overrule or modify the decision of Prudden v. Butler, supra, is denied.
Judgment reversed. All the Justices concur.