185 Ga. 688 | Ga. | 1938
Lead Opinion
One of the residuary legatees of a will sued the executor for an accounting and a recovery of the plaintiff’s share of specific items claimed; and for an injunction, as to the granting of which no exception was taken. Under the will the residuary estate was left to the grandchildren of the testatrix, the children of her three daughters, per stirpes, with a conditional devise to the effect that the children of her son receive a fourth share, if, at or before the time his oldest child became of age, he repay a $19,000 debt due to the testatrix; and if he did not, that any amount then unpaid “be deducted from and charged against the share which is going to his children under this will.” The will directed the executor “to pay over to each grandchild its proportionate share upon its becoming 21 years of age,” and to “control and manage said rest and residue of my estate for the benefit of my said grandchildren,” with full power and authority to sell all or any part of the estate at public or private sale, and to “continue so to do as long as my estate is not completely administered.” The executor was further authorized in its discretion to apply the income from the share going to any child to maintenance, education, and support before majority; and also, in ease of necessity, to any parent of the grandchildren. It was further provided: “I hereby . . relieve my executor from giving bond and making any official return, but request that it furnish to each of my four children an annual statement showing the administration of my estate.” The petition alleged that the plaintiff became twenty-one years old on November 23, 1932; that he was one of the two children of a daughter of the testatrix, and was entitled to half of one third of the residuary estate; that the executor qualified on September 9, 1921; that it was its duty to sell the real estate and reinvest the proceeds in securities authorized by statute within one year after qualification as executor and within a reasonable time; that the defendant was liable for the lost value of the real estate as of September 10, 1922, the end of the first year of administration, on account of the then greatly enhanced value and the subsequent depreciation; that the defendant was liable for the value of a promissory note, on account of its failure to make collection; and that it was liable for the proceeds of sale of corporate stock and stock dividends. In addition to an accounting, a total judgment of $11,166.38 and interest was prayed for, rep
(a) The will made no devise or bequest to the defendant company as trustee, but, after designating it as executor, provided that “my executor shall control and manage said rest and residue of my estate;” that its authority to sell at public or private sale and on such terms as it might think best “continue . . as long as my estate is not completely administered and wound up;” that “my said executor is directed to pay over to each grandchild its proportionate share upon its becoming 21 years of age;” and that, without the duty of giving bond or making any official return, “my executor . . furnish to each of my four children an annual statement showing the administration of my estate.” While these provisions vested the executor with broad discretionary powers, contemplating duties to be performed as executor beyond the period of one year from its qualification, such powers and duties were not conferred upon it as trustee. Any liability for failure to sell the real estate arose, therefore, as executor, and not as trustee. While an executor or administrator can not invest funds of the estate in lands, unless authorized by the will or by order of the superior-court judge in term or vacation (Code, § 113-1517), he is not required or authorized to sell real estate except where it is necessary for the purpose of paying the debts or making distribution otherwise than in kind. Patterson v. Fidelity & Deposit Co., 181 Ga. 61, 64 (181 S. E. 776, 106 A. L. R. 425); Williams v. First National Bank of Atlanta, 181 Ga. 38 (181 S. E. 225); Calbeck v. Herrington, 169 Ga. 869, 875 (152 S. E. 53). The will did not require the executor to sell the real estate. If a sale became necessary for distribution, no duty for that purpose was in any event created until it became necessary to sell so as to pay the minor residuary legatees as they respectively became of age and then en
(&) While any such liability of the defendant must be predicated upon its duties as executor, and not as trustee, even if the language of the will could be construed as impliedly making the defendant a trustee and as creating in it a devise in trust, still the allegations of the petition were insufficient to charge the defendant as such a trustee. “All property, both real and personal, being assets to pay debts, no devise or legacy passes the title until the assent of the executor is given to such devise or legacy.” Code, § 113-801. Even where the same person is expressly or by implication made trustee as well as executor, the administration of the executor does not end until there is a delivery, express or implied, to the trustee, upon assent of the executor, express or implied, to the legacy in trust. Eedfearn on Wills, 365, and cit. The petition failed to show that at or before the time when the defendant is sought to be held liable for failure to sell the real estate it had expressly or impliedly assented to any legacy in trust to itself as trustee, or had as trustee taken over the legacy; or even whether, at the time referred to, the duties of the executor in the payment of debts and collection of assets had been completed, so that an
(c) But even though the petition showed no liability as to the items claimed with reference to the real estate, the general demurrer was properly overruled, if the facts alleged entitled the plaintiff to any of the substantial relief prayed. Arteaga v. Arteaga, 169 Ga. 595 (4) (151 S. E. 5). “A court of equity” having “concurrent jurisdiction with the ordinary over the settlement of accounts of administrators” (Code, § 113-2203), the court first taking will “retain it, unless a good reason shall be given for the interference of equity” (§ 37-122). “A proceeding in equity for such settlement is not an interference with the regular administration of the estate within the meaning” of § 37-403. Terry v. Chandler, 172 Ga. 715 (3) (158 S. E. 572). The mere qualification and the filing of annual returns by an executor in the court of ordinary do not constitute a proceeding for a “settlement of his accounts,” with judgment enforcing the settlement, as provided by the Code, §§ 113-2201, 113-2202, and would not preclude the superior court from taking jurisdiction of a subsequent petition by a residuary legatee for an accounting and settlement against the executor. The averments and prayers of the petition for “a full and complete accounting” as to the assets of the estate, including items other than the value of the real estate, were not subject to general demurrer. Walker v. Morris, 14 Ga. 323 (4, 5), 325; Johns v. Johns, 23 Ga. 31, 35; Ewing v. Moses, 50 Ga. 264 (2), 265; Dean v. Central Cotton-Press Co., 64 Ga. 670, 674; McGowan v. Lufburrow, 82 Ga. 523, 530 (9 S. E. 427, 14 Am. St. R. 178); Williams v. Lancaster, 113 Ga. 1020 (39 S. E. 471); Strickland v. Strickland, 147 Ga. 494 (94 S. E. 766); Calbeck v. Herrington, supra; Howard v. Boone, 170 Ga. 156 (152 S. E. 462). Part of the relief prayed being proper, the court did not err in overruling the general demurrer to the entire petition.
Under the Code, § 113-2201, “any person interested as . ".
“The character in which a party is sued may be determined from the substance of the allegations of the petition, considered in its entirety.” Wallace v. Wallace, 142 Ga. 408 (83 S. E. 113), and cit. The amended petition as a whole showing that the plaintiff sought to charge the defendant, not only with liability individually for failure to perform its duties as executor in a sale of the real estate and the collection of a promissory note, but with liability for an accounting and judgment against it as executor for the proper distributive share of the estate due to the plaintiff as a residuary legatee, the petition was not subject to demurrer on the ground that the defendant in its representative capacity was not made a party. Furthermore, the question, being a matter for special demurrer, was not 'raised until nearly three years after the defendant had filed its answer, setting forth its due administration of the estate as executor, and even though, as the auditor found, the defendant “during the pendency of the case . . sought direction of the court and relief as executor, which was granted on consent of the parties.”
In the order of the court, overruling all of the general and special demurrers to the petition, it was held that the allegations were sufficient “to authorize and require an accounting.” The auditor to whom the case was referred found in effect that the defendant was required to sell the real estate within twelve months after its qualification; that this was a “reasonable time;” that the son of the testatrix, who owed the $19,000 to the estate, had not paid the debt, and while the time for deduction of this amount from the share of his children, on the date when his oldest child became of age, as provided by the will, had not arrived, one fourth
After the verdict the plaintiff moved to recommit the ease to the auditor to take evidence and make findings as to when a “reasonable time” occurred within which the defendant was required to sell the real estate, and as to what was the value of the real estate and loss at that time. The court denied the motion. In a motion for new trial the plaintiff assigned error on rulings adverse to him. By direct bill of exceptions he assigned error on the refusal of a new trial, to parts of the decree and previous rulings adverse to him, and to the denial of his motion to recommit the case. The defendant made no motion for new trial. In a cross-bill of exceptions it assigned error on its exceptions pendente lite to the overruling of its demurrers to the petition; and excepted to rulings in the trial on the exceptions to the auditor’s report relative to the sale of the real estate, and to other adverse rulings of the court in matters on which the verdict and final decree were in its favor. It also excepted to part of the verdict and final decree for an item found in favor of the plaintiff, upon grounds hereafter stated and dealt with. The brief of evidence contains a stipulation of the parties, showing that the eldest child of the son of the testatrix did not become of age until March 5, 1937, after the auditor’s report and the taking of the evidence on which the case was tried, which failed to show whether at the date of such majority the whole or any part of the son’s debt had been paid, or what at that time was the value of the one-fourth conditional interest of his children. The stipulation further showed that the other legatee grandchildren reached majority on different dates from January 28, 1925, to March 18, 1936; the youngest of the children of the son, one of the conditional legatees, becoming
It was error to direct a verdict for the plaintiff and to decree in his favor that he was entitled to one half of one third, or a one-sixth interest in the residuary estate. It could not be determined until March 15, 1937, when the eldest child of the son of the testatrix became twenty-one, whether the debt of the son would be paid in whole or in part, and, if not, whether the value of the one-fourth interest going conditionally to his children would then exceed the amount of the debt, so as to determine whether the shares going to the children of the daughters, per stirpes, would each be one fourth or one third of the residuary estate. The report of the auditor having been filed, and the evidence having been taken before March 15, 1937, and thus necessarily failing to show the facts necessary for such a determination, a re-examination of these facts and a determination therefrom by the trial court of this question is necessary, so as to find whether the plaintiff would be entitled to the one sixth claimed or only one eighth.
Under the preceding ruling that the court did not err in holding that the plaintiff was entitled to a full and complete accounting, as prayed, for items excluding the value of the real
Under the preceding rulings as to the alleged liability for failing to sell the real estate, the court properly denied the motion of the plaintiff to recommit the case to the auditor to determine when a reasonable time for such sale occurred, and what was the value of the property and the amount of the loss as of that time.
Dealing with the defendant’s exceptions with regard to the item found in its favor in the verdict and final decree: while the jury, in the trial of the equity case on exceptions to the auditor’s report, found for the defendant as to certain exceptions, it found for the plaintiff on one of the items sued for, the value of a promissory note. A final decree was entered in favor of the parties respectively as to these matters. The plaintiff, in his motion for new trial, excepted to rulings in the matters found against him in the verdict. In connection with these exceptions he filed a brief of the evidence, which, as he concedes, contained none of the evidence relating to the item found in his favor. In the main bill of exceptions the plaintiff excepted to the refusal of a new trial. The judge certified that the main bill “contains all of the evidence and specifies all of the record material to a clear understanding of the errors complained of” in such main bill. The defendant, without a motion for new trial, brought a cross-bill of exceptions, in which
A cross-bill of exceptions is a remedy provided for the successful party in a verdict and judgment to have reviewed adverse rulings made during the trial, “in the event his adversary is successful in obtaining a judgment in the Supreme Court which in its effect leaves the case to be tried again in the trial court.” Planters &c. Fire Asso. v. DeLoach, 113 Ga. 802, 807 (39 S. E. 466); Code, § 6-901. It is not the function of the cross-bill to review previous rulings adverse to the plaintiff in error in the cross-bill, where the verdict and judgment based on such adverse rulings were also adverse to such plaintiff in error. In such a case, an independent bill of exceptions is the proper remedy. “The cross-bill of exceptions . . could properly assign error only upon such rulings of the court as were .adverse to [the plaintiff in error] and related to the particular judgment which the court finally rendered in [Ms] favor, and which is complained of by the opposite party in the main bill of exceptions; this in order that the rulings so made by the court adversely to [him] may be corrected for [his] benefit in the next trial, if a reversal is ordered on the main bill of exceptions, or if an affirmance will leave the case to be tried again in the court below. If there is m> reversal, or if affirmance does not leave the case to be tried again in the court below, the settled practice is to dismiss the cross-bill of exceptions.” (Italics ours.) Alexander Lumber Co. v. Bagley, 184 Ga. 352 (2), 365 (191 S. E. 446). See also McMullen v. Butler, 117 Ga. 845 (3), 848 (45 S. E. 258); Turnbull v. Foster, 116 Ga. 765, 771 (43 S. E. 42); Latimer v. Bennett, 167 Ga. 811, 819 (146 S. E. 762); Maynard
Judgment affirmed in pari and reversed in pari on each bill of exceptions.
Concurrence Opinion
concurring specially. The first division of the opinion seems to rule that equity, having "concurrent jurisdiction” with the court of ordinary of actions for accounting against executors and administrators, will exercise such jurisdiction, regardless of whether the facts are such as to render an accounting in the court of ordinary inadequate for any reason. We are inclined to the view that equity, while having concurrent jurisdiction or power in such matters, will not exercise it unless the remedy at law is inadequate; but since in the present case there were special facts to render the equitable action more adequate and complete, we do not deem it necessary to rule on this question and merely concur in the result as to this phase of the case. See Strickland v. Strickland, 147 Ga. 494 (supra); Terry v. Chandler, 172 Ga. 715 (supra); Evans v. Pennington, 177 Ga. 56 (169 S. E. 349). Otherwise we concur in the opinion as written.