176 Ga. 471 | Ga. | 1933
The allegations in the petition are insufficient to set aside the award. Executors are authorized to submit to arbitration all contested or doubtful claims for or against the estate. Code, § 4004. They may in good faith and with proper prudence submit to arbitration the matter in controversy in connection with the estate they represent. The award may be made the judgment of the court. Code, § 5030.
An award against an executor, in the absence of fraud, accident, or mistake, and until set aside, is conclusive, in reference to the matters submitted, upon the legatees and all parties thereto. There is no provision for notice of the submission to the legatees. They are represented and are parties to the case through the executor, who is designated by law to represent them and the interests of the estate. Walton v. Reid, 148 Ga. 176 (96 S. E. 214); Clark v. Flannery, 99 Ga. 239 (35 S. E. 312). However, awards may set aside in equity; and in a proper ease therefor the legatees, on
When an award has been returned to the court, either party,
After an award is made the judgment of the court, a court of equity may set it aside. Fraud in the arbitrators or in either party obtaining an award would set it aside. Code, § 5029. Fraud will authorize a court of equity to relieve against an award obtained by imposition. § 4629. To determine whether equity will set aside an award for fraud, these two sections must be construed together with § 4585, which provides: “Equity will interfere to set aside a- judgment of a court having jurisdiction only where the party had a good defense of which he was entirely ignorant, or where he was prevented from making it by fraud or accident, or the act of the adverse party, unmixed with fraud or negligence on his part.” There is no fraud or mistake alleged on.the part of the arbitrators, nor is it alleged that the wife practiced any fraud or deception either on the arbitrators or the executor, or that she in any manner colluded with the executor or prevented it from making a defense to her demand. The allegation is that her claim was spurious and fraudulent and was so known to> her, and that the proceedings to arbitrate were devised by her merely as a pretense of avoiding the provisions of the will. Such general allegation means nothing more than to say her demand was not due, just, or bona fide. Under § 4585, the allegations in the petition were wholly insufficient to set aside the award as to the wife. Fraud
To set aside an award for fraud, it is not sufficient to state the fraud in general terms, but such facts of fraud must be so stated that the court may see the illegality. Shaifer v. Baker, 38 Ga. 135. Exceptions to an award that are vague and loose, the evidence before the arbitrators not set out, and no full data furnished from which the court may accurately determine the mistake, if any exists, are properly dismissed on demurrer. Cox v. Mercer, 74 Ga. 399; Overby v. Thrasher, 47 Ga. 11. Even if it be admitted that the executor had a good defense to the claim and that its failure to make same is well pleaded, such would not authorize setting aside the award. Mere failure to make a defense affords no ground to set aside an award. Fraud that will authorize a court in equity to set aside an award is fraud extrinsic or collateral to the matter tried by the first court, and not a fraud which was in issue in that suit; or it must be fraud or deception practiced on the unsuccessful party, by which he was prevented from exhibiting fully his case, and by which there has never been a real contest before the court on the subject-matter of the suit. U. S. v. Throckmorton, 98 U. S. 61 (25 L. ed. 93); Thomason v. Thompson, 129 Ga. 440 (59 S. E. 236, 26 L. R. A. (N. S.) 536). From the allegations in the petition it may be assumed that there was evidence to sustain the finding of the arbitrators. In the absence of fraud, accident, or mistake, the award could not be set aside if there was any evidence to sustain it. Osborn v. Blanton, 109 Ga. 196 (34 S. E. 306). Moreover, to set aside an award where an investigation of the evidence is necessary to consider the objection thereto, a brief of the evidence introduced before the arbitrators is required to be filed with the exceptions, and in the absence of such brief the exception will be dismissed. Evans
The executor was authorized by the will to pay the wife $150 per month. Plaintiffs are not entitled to any relief on account of this item. The will provided that the executor pay the wife during her life $150 a month from the net income. At the time of making the will the monthly net income of testator was probably about $500. This $150 annuity was given to her in lieu of dower and year’s support. Looking at the will as a whole, the intent was to give her $150 per month in lieu of dower and year’s support. That it was to be paid from the net income was a secondary thought. An unconditional gift of the entire income of property, or interest accruing from a fund, will be construed as a gift of the property or fund, unless the provisions of the will require a more limited meaning. Code, § 3899. Legacies may be either general or specific. A specific legacy is one which operates on property particularly designated. A gift of money to be paid from a specified fund is nevertheless a general legacy. § 3902. “As a general rule, it is true that a gift of money, to be paid from a specified fund, is nevertheless a general legacy, and a failure of the fund does not destroy the legacy. Code [1868], § 2422 [1910, § 3902]. But
Under the allegations in the petition, the plaintiffs were not entitled to cancel the deed by the executor to the wife, alleged to have been made and accepted as a credit on the debt found by the arbitrators to be due her. As between her, the executor, and the legatees, the finding of the arbitration as to her claim was final and conclusive. Hers was a debt against the estate that had to be paid. The will required the executor to pay the debts. The income of the estate was insufficient to pay. Under the broad powers conferred by the will, the executor was authorized, without any order of court,
The other allegations furnish no grounds for equitable relief. There is no allegation of insolvency of the executor; and even if it be true that the executor, by negligently failing to collect, lost the amount due on the $5000 Pike note, or was negligent in reference to the arbitration, or was otherwise mismanaging the estate, this furnished no ground for equitable relief, since such matters were within the jurisdiction of the court of ordinary. Gibbs v. Gibbs, 151 Ga. 745 (108 S. E. 214); Gould v. Glass, 120 Ga. 50 (47 S. E. 505); Walton v. Reid, supra. If the executor is unfit to handle the estate or there is cause for his removal, the plaintiffs have a remedy for such in the court of ordinary. Code, §§ 4790, 3978. Stanley v. Spell, 46 Ga. App. 91 (166 S. E. 669).
Plaintiffs request this court to grant them the right to amend their petition, and cite as authority for such Ferrell v. Greenway, 157 Ga. 535 (122 S. E. 198). This court is a court of review for the correction of errors in the trial court. It would not be proper to allow the amendment here. Under the Code, § 6205, it is within the power of this court to award such order and direction to the carrse in the court below as may be consistent with the law and justice of the case. The Ferrell case and the cases of Brown v. Bowman, 119 Ga. 153 (46 S. E. 410), and Sims v. Cordele Ice Co., 119 Ga. 597 (46 S. E. 841), cited therein, differ from the present case,'in that the petitions in those cases presented a meritorious case and were good against a general demurrer. Such being true, and the lower court having dismissed the same on both general and special demurrers, direction was given by this court that the plaintiffs be permitted to amend. Conceding, however, that the allegations in the proposed amendment would be sufficient to withstand demurrer (which we do not now decide), it would not be proper to allow the amendment at this time. The demurrers were heard be
We conclude there was no error in sustaining the demurrers, and that the petition was properly dismissed.
Judgment affirmed.