183 Ga. 93 | Ga. | 1936
Mrs. Frances Napier as executrix of the will of George M. Napier, deceased, filed an equitable petition asking for direction as to the distribution of said estate, naming as defendants H. S. Bogers, T. M. Mitchell, Beagan L. Jones, M. L. Hirsch, and F. C. Mims. She alleged that there were numerous unsecured creditors of the estate, H. S. Bogers being named as one of the class and to represent the entire class; that Beagan L. Jones held a loan deed executed by her testator and duly recorded, conveying 500 acres of land to secure an indebtedness originally of $12,000, the said land being in what is known as the Broomtown Valley in Walker County, Georgia, and divided by what is known as the Broomtown Boad; also forty acres, known as the Hood tract and lying on the east side of the road, not being included in the loan deed to Jones. Subsequently, on October 15, 1927, Napier sold to T. M. Mitchell the land west of the road, and Mitchell, executed to Napier a series of purchase-money notes, three $1745.44 notes of which being unpaid at the time the petition was filed, and being found among the effects of Napier, and since his death they have been in the possession of the executrix except one which has been paid. The Hood tract on the east side of the road was conveyed to M. L. Hirsch, with numerous other tracts of land, to secure an indebtedness due to him by Napier, after which conveyance and record Napier on October 11, 1928, sold the land east of the Broom-town Boad, including the Hood tract, to T. M. Mitchell, who executed to Napier a series of purchase-money notes. One unpaid note of $1000 was found among the papers of the deceased, and at the time of the filing of the petition was in the hands of the executrix, the said note maturing on December 1, 1937; two other notes of $1000 having been disposed of by Napier in his lifetime, and being in the hands of innocent parties. It was alleged that F. C. Mims asserted some claim which might involve a certain lot
Mitchell filed an answer and two amendments, the details of which will not be set forth here, because on the trial of the case the various parties submitted an agreed statement of facts. M. L. Hirsch filed an answer setting up the amount he claimed to be due him by Napier, which will not be referred to in detail, because of the agreed statement above mentioned. Jones filed an answer setting up his claim. F. C. Mims filed no answer. Mrs. Frances Napier, individually and as next friend of her minor children, Eulalie and Frances Napier, intervened and set up that upon her application for a year’s support the appraisers appointed by the court had made their return awarding $2500 and the household furniture belonging to the estate, and that the ordinary had made the return the judgment of the court; that they were entitled to have the $2500 paid to them from the estate of the deceased Napier, in preference to other claims; and she prayed the court to direct the executrix to pay them the amount set apart as a year’s support as a priority. Under the agreed statement of facts it was admitted by the parties, among other things, that Napier, on October 12, -1928, became indebted to Mrs. Edna Avery Jones as guardian of Eeagan L. Jones, in the sum of $12,000, secured by a loan deed on certain described property consisting of 505.5 acres
It was further agreed that in 1927 Napier returned for taxation in Walker County the lands east and west of the Broomtown Road, subsequently sold to Mitchell on bonds for title, and that he also returned five head of mules, six head of cattle, twelve head of hogs,
The case was submitted to the court without a jury. It was decreed that Beagan L. Jones had a first security deed against the property east and west of the Broomtown Boad, except the 40-acre tract, the debt secured thereby being a balance of $3634.65 principal, and $624.30 interest to the date of the decree, a total of $4258.95; that M. L. Hirsch had a first security deed against the 40-acre Hood tract east of the Broomtown Boad, the debt secured being a balance of $7299.18 principal, and $2805.64 interest to the date of the decree, a total of $10,105.82; that the bonds for title from Napier to Mitchell be reformed in accordance with the descriptions given in Mitchell’s amendment of December 6, 1934; that Mitchell signed two notes for $1745.44 each, payable to Napier, as
It was further decreed that the two notes of $1745.44, as above referred to, - were held in trust by Napier at the time of his death, to pay the balance owed on the Jones debt, and, that until sued on so far as necessary to discharge said encumbrance, the notes were not assets of the estate of Napier, and not subject to the year’s support or expenses of administration; and that since they were subject to a good defense of the maker, T. M. Mitchell, nothing was due on them. Further, that the note for $1000' from Mitchell to Napier, maturing December 1, 1937, was held in trust by Napier at the time of his death, to clear the encumbrance on the 40-acre Hood tract in favor of M. L. Hirsch for the protection of Mitchell, and that until so used as far as necessary to remove the encumbrance the note was not an asset of the Napier estate and not subject to the claim of a year’s support or the expenses of administration; and that since the same was subject to a good defense of Mitchell, nothing was due by him on the note. Further, that Dr. F. C. Mims made no answer to the suit and was in default, and had no interest or claim to the lots in Glynn County as against the plaintiff, the estate of Napier, or the intervenors. Further, that the plaintiff had in hand $752.25, proceeds of insurance, and was directed to pay that sum to Mrs. Frances Napier, as widow claiming under a year’s support, for the use of herself and two minor children. Further, that the notes and stocks held against parties outside of the suit, two lots of nominal value in Glynn County, Georgia, were subject to the claim for year’s support and should be devoted to such purpose. Further, that, there being no assets for
To this decree Mrs. Frances Napier as executrix of the will of George M. Napier, deceased, and in her individual capacity, and Eulalie Napier and Frances Napier, daughters of the deceased and Mrs. Napier, excepted with numerous and extensive assignments of error. The first eleven assignments may properly be considered together. It is contended that the court erred in holding that the 1927 taxes paid by Mitchell were superior to the claim of year’s support. The others of the first eleven assignments relate to portions of the decree which plaintiffs in error state were holdings; (2) that Mitchell properly paid off the taxes, and that the lien was superior to the claim of year’s support; (3) that there had been a failure of consideration as to the Mitchell notes; (4) that Mitchell was entitled to a deduction from the two notes of $1745.44 each, for the amount of the Jones encumbrance and $105.17 of the 1927 taxes paid by him, leaving $458.82 of the taxes to be considered as a deduction in connection with the 40-acre Hood tract on which Hirsch held an encumbrance; (5) that the plaintiff turn over to Jones or his attorney of record the two notes of $1745.44, with a deed executed to Mitchell conveying the land west of the Broom-town Eoad, to be held in escrow and later delivered to Mitchell on certain named conditions; (6) that neither the year’s support nor the expenses of administration did or could impair the validity of the tax lien or take precedence over it; (7) that Mitchell properly paid the 1927 taxes; (8) that there had been a failure of consideration as to the $1000 note in the hands of the executrix; (9) that the balance of the 1927 taxes, $458.82, after applying $105.17 in the settlement between Mitchell and Jones, and the balance due Hirsch of $10,563.64, should be deducted from the $1000 note, and that since the deduction exceeded the balance on the $1000 note, Mitchell was due nothing thereon, and the executrix should enter
In the assignments of error the statement that the court held that the 1927 taxes were a lien superior to a claim for year’s support and expenses of administration was inaccurate. The holding was, as shown in the foregoing recitals of the decree, that the notes were not assets of the Napier estate, but were held by him in trust for others, rather than for the estate, and hence were not subject to the claims mentioned. This was not a holding that the tax lien was superior to a year’s support or expenses of administration, but rather that the notes, not being a part of the Napier estate, were not subject to be appropriated to a year’s support or to expenses of administration. It requires no citation of authority to show that a year’s support or expenses of administration can be set apart only from the property or assets of the estate in question. As shown in the foregoing, it was agreed that certain correspondence, as set out, took place between Napier and Mrs. Jones as guardian for Beagan Jones, as to the $1745.44 notes, a fair construction of which
Furthermore, it was shown in the agreed statement of facts that at an interlocutory hearing a judgment was rendered, reciting that such notes were held in trust by Napier for Reagan L. Jones, and an order was passed that payment of one matured note be made to the attorney of record of Jones, and that this was done; and it is undisputed that no exception was taken to that judgment, and such judgment as to the $1745.44 notes being held in trust became the law of the case. It was also shown, by setting out copies of correspondence with reference to the remaining $1000 note, as well as by a memorandum in his own handwriting and attached to the note, that Napier was holding the note as trustee for the benefit of Hirsch and Jones in applying the proceeds, when received, against the Hirsch encumbrance. It necessarily follows from a proper consideration of such evidence that as Napier was holding the notes in trust, they were not, at his death, assets of his estate and not
In the twelfth assignment of error the exception is to the decree that the intervenors were not entitled to recover on their claim for year’s support. The rulings above made require a holding that this assignment is without merit. In the thirteenth assignment it is contended that the court erred in decreeing that M. L. Hirsch, Beagan Jones, T. M. Mitchell, and H. S. Bogers were not liable for the costs of the suit, and in rendering judgment against the plaintiffs; the contention being that the executrix was entitled to have the direction of the court as prayed, that the cost of administration should not be a charge against hex individually, and that the three notes in question were assets of the Napier estate and should be used for the purpose of paying the year’s support and expenses of administration. The judgment being properly for the defendants, they were not liable for costs which were rightfully assessed against the losing parties. In the fourteenth assignment it is contended that the court should have found that there was no evidence to show the value of the personal property included in the bonds for title from Napier to Mitchell, as distinguished from the value of the land also covered by the bonds for title; and that Mitchell had hot
Judgment affirmed.