157 Ga. 377 | Ga. | 1924
Odell Thompson, as administrator on tbe estate of his father, W. T. Thompson, sold a certain tract of land belonging to the estate of his intestate. The heirs of the intestate were
The evidence should have been admitted. While the evidence was insufficient to establish that White was the agent of his wife, nevertheless the marital relationship existing between White and one of the heirs was material to be considered by the jury in passing upon the question of fraud alleged to have existed in the sale. Mrs. White was a participant in the profits of the sale, if the land was bought, as alleged, at less than its value. The fact that the husband was active in bringing about the result that secured to her these profits cannot be ignored in passing upon the question as to whether or not he was acting for his wife. Transactions between husband and wife should be scanned with care. The plaintiff in this case and her children were excluded from the profits made by the purchasers at the administrator’s sale. Mrs. White, one of the heirs and defendants, will share in the profits in case the sale should not be set aside. Under the facts and circumstances proved, we think the jury should have been allowed to pass upon the question as to whether the sale was fair and legal, or whether it was
Upon the subject of fairness and illegality and invalidity of sales by administrators, see the following authorities: Sikes v. Sikes, 153 Ga. 725 (113 S. E. 416, 24 A. L. R. 1324); Smith v. Georgia Loan & Trust Co., 114 Ga. 189 (39 S. E. 846); Barnes v. Mays, 88 Ga. 696 (16 S. E. 67); Holbert v. Allred, 24 Ga. App. 727 (102 S. E. 192); 24 Cyc. 28. In the case of Lowery v. Idleson, 117 Ga. 778 (45 S. E. 51), it was said: “A purchase by a husband at a sale had by his wife as administratrix is voidable at the election of heirs of the intestate, who move within a reasonable time after the sale to set the same aside.” And in the course of the opinion it was said: “It is hardly possible for a wife to make an advantageous contract of any kind without more or less beneiit therefrom resulting to the husband.” While the husb.and in the present ease, who it is alleged made misrepresentations tending to chill the bidding, did not have a legal interest in the property, he did have such a general interest in the matter as would render his acts and doings material for the consideration of the jury in passing upon the issue involved in this case. In the case of Fairburn Banking Co. v. Summerlin, 144 Ga. 31 (85 S. E. 1007), it was said: “The mere fact that the purchaser at an administrator’s sale was the son of the administrator was not of itself sufficient to render the sale void. Such relationship was a circumstance which could be considered, in connection with other facts and circumstances, in determining whether the sale was collusive and fraudulent. Cain v. McGeenty, 41 Minn. 194 (42 N. W. 933).” The relationship between a son and his father is hardly as close as that between a husband and wife; but the relationship of son to father, as ruled in the case last cited, was permitted to go in evidence to the jury in passing upon the question whether the sale by the administrator to his son was void for fraud. Evidently it was the opinion of the court, that, while the father had no interest in the property of the son, their general interest in each other’s welfare and property was such that the jury could consider that relationship in passing upon the question as to whether the sale of the property by the father as administrator to the son was void on the ground of fraud. Judgment reversed.