5 S.E.2d 227 | Ga. | 1939
1. Title to property devised by will, and to be divided among a group of persons upon the happening of a particular event, vests in the executors of the will pending its sale, for the purpose of paying debts of *92 the testator, or for the purpose of distribution, in the absence of assent by the executors to the legacy. An executor may withhold from a legatee whatever portion of his distributive share may be necessary to pay an indebtedness due by the legatee to the estate, so as to equalize distribution among legatees. Such right of retainer may be asserted as against the transferee or assignee of a legatee. So also the lien of a judgment against a legatee does not attach to property passing under a will as above stated, either in the hands of the executor or of purchasers under him at a valid sale.
2. In an equitable action to subject the legacies of certain persons under a will to the payment of claims against such legatees, where it appears that the executors have sold the property passing by such legacies, for the purpose of making distribution among the legatees, and have retained the portions of certain legatees to satisfy their indebtedness to the estate, there is nothing upon which a trust or other equitable claim in favor of the plaintiff may operate, and a judgment denying the relief sought is appropriate. In such a case a showing of fraudulent purposes on the part of the legatees in connection with the sale of such property will not aid the plaintiff, in the absence of a further showing that they hold some interest in the property which might be otherwise subject to seizure.
3. The facts in the present case show that the plaintiff, who by transfer and assignment had succeeded to the interests of certain legatees, took such interest subject to the prior right of the executors to retain such legacies as against indebtedness due to the estate by the named legatees; and for this reason the alleged fraud in the sale of the property passing under the will does not, in respect to such property, alter the rights of the parties.
The suit was against the administrators and all of the legatees, except Ed Musselwhite, who had settled his interest in the estate. It was alleged: "The purpose and effect of said agreement between the said administrators and the said nine of said legatees who *94 were purchasers of the property when sold, and the administrators' deed made in pursuance thereof, was a fraud upon plaintiff and his predecessor in title, and to prevent collection of the debts justly due from the other four legatees, all of whom were at the time of said agreement and now are wholly insolvent, and the said administrators' deed having been made to the purchasers at said sale under the above-stated agreement as to the administrators and the four legatees set out as being indebted to plaintiff; said sale being under a valid order of the court of ordinary providing for said sale. The assets of the insolvent debtors thereby passed into the hands of the said grantees under the said administrators' deed; therefore the said grantees should be deemed and treated as trustees for the respective shares of the said debtor legatees excluded from said deed, and thereupon plaintiff's liens upon the said shares should be set up and established, and the respective interest of said debtors in said lands represented by said shares should be decreed to have been sold to the said nine legatees as trustees for the said debtors as to their respective shares and interest; and that the said land purchased by the said nine legatees should still be subject to plaintiff's respective claims against said four eliminated debtors, and the lien of plaintiff should also apply as to any other funds in the hands of said administrators. Plaintiff is entitled to assert against the said administrators and against said nine purchasers his demands as a prior lien against each of the respective shares of said four debtors that were eliminated by said agreement and deed made by the administrators in pursuance of said sale to the said nine legatees as purchasers as to the property purchased as aforesaid, and to any funds that may remain in the hands of said administrators." The prayers of the petition, omitting formal parts, were: "(a) That he as plaintiff have judgment on each of said claims against each of said four eliminated debtors, setting up the amount due thereon. (b) That plaintiff's demands against the said J. W. Musselwhite, Frank Musselwhite, Clara Musselwhite, and J. A. Musselwhite be set up and established as prior liens as to their full shares as legatees under the will of their father, the said W. M. Musselwhite. (c) That plaintiff have such other and further relief in the premises as the court shall deem meet and proper." To the petition the administrators demurred generally, and the nine legatees demurred generally and specially. *95
An amendment of the petition was sworn to on December 15, 1937, but the record is silent as to the date when the amendment was presented or filed. It was allowed subject to demurrer, by order not dated. This amendment alleged, that at the time of the agreement between the administrators and the nine legatees, these legatees and the administrators had knowledge of the execution of the conveyances upon which this suit is predicated; that the administrators agreed that the nine legatees were to buy in said property and to pay for it with their distributive shares of the estate; that immediately after Hinton delivered this deed to the nine legatees they went into possession of said real estate; that "at the time of said sale plaintiff's predecessors owned and held the notes and the liens set forth in original petition; Clara Musselwhite, Frank Musselwhite, and J. A. Musselwhite executed their deeds to secure said indebtedness, thereby conveying all of their distributive share to the First National Bank, Reynolds, Ga., which fact was known to the said administrators and to the said nine legatees purchasing said property at the time the agreement was made as to how the purchase should be made. "Plaintiff contends that the acts in connection with said agreement, the agreement itself, and the deed made in pursuance thereof and the taking of possession of the property described in said deed was a fraud, and the property purchased at said sale under the above-stated facts was impressed with an implied trust for the benefit of all of the legatees or their assignees to all of said estate." Further it was alleged that "the property purchased by said nine legatees was by implication the purchase of all of the legatees or assignees of said estate," and that "the acts alleged therein constitute the acts of fraud;" that since the petition was filed the administrators have paid to said nine legatees of said estate $4428.21; that the plaintiff is entitled to such proportionate part of that sum "as may be determined from the accounting herein sought;" that the same "should be apportioned in accordance with the liens and claims held by plaintiff against the four legatees of said estate as his plaintiff's interest appears;" and that "the effect of the purchase of said sale of the real estate, under the alleged facts, circumstances, and conditions as above set forth, was in a legal sense a transfer from the said administrators to the said nine legatees of the trust of the administrators, and left the obligation upon the said nine legatees to administer *96 that part of the estate in accordance with the terms of the will." The prayers of the amendment were, for an accounting between him, the administrators, and the nine legatees; and for judgment against the administrators in "such amount as may be determined by said accounting to be due plaintiff upon its claims set out in his petition."
On March 15, 1938, the judge overruled the demurrers, except that in his order he held that a copy of the contract between the administrators and the nine legatees referred to above should be set out. This order did not mention any amendments.
On March 22, 1938, a third amendment was offered, with an attached copy of the contract, and since that contract is the one attacked by the plaintiff, as follows:
"Whereas, on this the 7th day of March, 1933, H. K. Sealy and F. A. Ricks, as administrators de bonis non of the estate of W. M. Musselwhite, deceased, after proper orders of the court of ordinary of said county, and after proper advertisement as provided by law, did expose for sale all of the real estate belonging to said estate, at which sale nine of the heirs at law of said estate, to wit, Brown Musselwhite, Judson Musselwhite, Willie Musselwhite, Mattie Musselwhite, Jessie Musselwhite, Mrs. Nellie Musselwhite Goodman, Mrs. Marilu Musselwhite Joiner, Mrs. Ruth Musselwhite Skinner, and Mrs. Kate Musselwhite, were the successful bidders at said sale, and said lands were knocked off to said nine heirs at and for the sum of $10,600; and whereas it appears from an examination of the records of advancements made to the other heirs of said estate that they have already received the full amount of their distributive shares in said estate and that the nine heirs hereinabove mentioned are the only heirs to share in said estate; and whereas said purchasers wish to apply their distributive shares in said estate to the payment of the purchase-price of their said bid, and not to pay same into the administrators in cash in compliance with their said bid; and it appearing that there are no debts of said estate, except for delinquent taxes due by said estate, which still remain in as a lien on the lands sold: Now therefore, the premises considered, it is agreed between the administrators above mentioned and C. B. Marshall as attorney at law representing all the heirs of said estate, those mentioned above as well as four others who have no distributive share in said estate, with the purpose *97 and intent of protecting the rights of all parties concerned, and to fully protect the said administrators in their said actions relative to said sale, that a deed in escrow will be executed and delivered to R. A. Hinton, conveying the lands so sold as aforesaid to the purchasers at said sale, to be held by him to be delivered to the purchasers as soon as all liabilities of said estate, including the delinquent taxes mentioned above, have been fully paid and discharged, and a full settlement of the interests of all the heirs in and estate can be legally effected,
"F. A. Ricks and H. K. Sealy, Admrs. Estate of W. M. Musselwhite.
"C. B. Marshall, Atty. for the heirs of the said W. M. Musselwhite."
The plaintiff sought to "adopt" only the first, second, and last paragraphs of this contract. This amendment was allowed subject to demurrer.
Another amendment was presented on March 22, 1938, whereby it was sought to make the surety for the administrators a party defendant to the cause. On April 3, two additional amendments were presented. The first of these alleged that by virtue of the sale to them, and by virtue of the delivery of the deed to them by the escrow agent, the nine legatees took charge of all the real estate and had had the use and occupancy of same and had collected the mesne profits for six years, and therefore the plaintiff was entitled to recover four thirteenths of this rental value, in certain definite amounts. He claimed that he was entitled to four thirteenths of the sum previously referred to as having been paid to the nine heirs. He prayed that he "have judgment against the respective named debtors for the amount set forth in the above and foregoing petition, in order to determine the amount due petitioner by each of the said four heirs; and that same be set up as a lien on the respective interests of said four heirs. That plaintiff have judgment [against] the said nine heirs referred to in said petition, for the respective amount as set forth in the above and foregoing amendment." This amendment was allowed subject to demurrer. The second amendment struck the names of the administrators and the surety on their bonds as parties defendant, and recited that they had made a settlement with the plaintiff for all claims against them. On April 5, 1939, the nine defendant legatees filed a second *98 demurrer renewing the grounds general and special of the original demurrer, in addition to others presented. The court passed the following order:
"On the call of the above-stated case from the trial calendar, at this the April term, 1939, of Taylor superior court, plaintiff tendered three amendments to the petition, which were allowed subject to demurrer; whereupon counsel for the nine defendants [named] renewed their general and special demurrers previously filed to the petition as amended, and also filed additional general and special demurrers to the petition as now amended; and it appearing from one of the amendments that the plaintiff, since the filing of this suit, has settled with the administrators, Ricks and Sealy, named as parties defendant in the original petition, and has released said administrators from all claims against them, and by said amendment struck their names as parties defendant; and it further appearing from the petition as amended that all the general as well as special demurrers are meritorious and well founded: It is considered, ordered, and adjudged, that all of the general as well as the special demurrers be and the same are hereby sustained, and the names of the above-named nine defendants who filed these demurrers are hereby stricken as parties defendant." Error is assigned on this ruling; and complaint is made that the grounds of the first demurrer could not be inquired into, because no exception was taken to the original order overruling it. 1. The question, as shown by the foregoing statement, is whether or not the general demurrers should have been sustained. It is to be remembered that no exception was taken by the defendants to the order of the court overruling the general grounds of the first demurrer. So we must first determine the controversy as to whether the court had the right to pass upon these grounds after the subsequent filing of the several amendments. "An amendment to a petition, or plea, or answer, which materially changes the cause of action or defense,opens the petition, plea, or answer, as amended, to demurrer or plea. The opposite party shall be allowed a reasonable time for answering such amendment." Code, § 81-1312. Under this section the trial court could have considered all the amendments, because they were all presented *99 after the first demurrer was filed, and were all allowed subject to demurrer. In the order complained of the court said: "On the call of the above-stated case . . at this the April term, 1939, of Taylor superior court, plaintiff tendered three amendments . . which were allowed subject to demurrer." That order did not designate specifically those amendments. The last two of the amendments, one of which struck the names of the administrators and their bondsman as parties defendant, were presented on April 3, 1939, according to the court's order allowing them. These are the two which are dated. It is to be remembered that the other amendment in this record, which appears to have been sworn to on December 15, 1937, bears no date of presentation or of allowance. Counsel for the defendants state in their brief that this amendment was presented on April 5, 1939, and was one of the three which the court passed on. The plaintiffs have not refuted this statement. Irrespective, however, of this contention, and since the record does not disclose the date on which that particular amendment was presented or allowed, and since the judge passed upon three amendments, and not two, at the time he sustained the demurrers, we must conclude that he had under consideration the amendment which appears to have been sworn to on December 5, 1937. As before stated, the court could have considered all of the amendments in determining whether or not there was such material change in the plaintiff's cause of action as to open the petition to demurrer; but in passing on that question, we shall consider only the amendments which were presented on April 3, 1939, and that amendment which was sworn to as of December 15, 1937.
The petition alleged: "The said grantees [defendants] should be deemed and treated as trustees for the respective shares of said debtor legatees excluded from said deed, and thereupon plaintiff's lien upon the said shares should be set up and established on the respective interests of said debtor in said lands," etc. One of the prayers of the petition was as follows: "That plaintiff's demands against the said J. W. Musselwhite, Frank Musselwhite, Clara Musselwhite, and J. A. Musselwhite be set and established as prior liens as to their full shares as legatees under the will of their father, the said W. M. Musselwhite." So that all the relief sought was judgment against the debtor legatees, and that the plaintiff be decreed to have a lien, presumably upon the land. No other relief of *100 any nature was prayed for in the original petition against the defendants in error, and no accounting was prayed.
The amendment sworn to on December 15, 1937, which we have concluded the court passed on in the order sustaining the general demurrers, set out that the purchase of the real estate was by implication the purchase of all the legatees, including the assignees of said estate. The petition likewise alleged that all of said legatees should share in a sum of money which was paid to the nine legatees, defendants in error. In other words, the petition alleged that these four debtor legatees should be considered as purchasers, and should be considered as being entitled to share in this sum of money. By that amendment the plaintiff prayed for "judgment against said administrators for such amount." There was no prayer for judgment against the defendants in error. We think that this constituted a material change in the pleadings. The next amendment was one of those presented on April 3, 1939, claiming four thirteenths of the rental value of the land conveyed by the administrators, as to the defendants, for a period of six years; also for four thirteenths of the distribution in money made to the nine legatees; and for the first time the plaintiff prayed for judgment against defendants. This constituted a material change in the pleadings. In view of the character of relief prayed for, it also was a substantial change in the state of the pleadings when the plaintiff presented another amendment by striking the administrators and their bondsman, by setting out that these parties, against whom he had prayed substantial relief, had pendente lite settled their liability on plaintiff's cause of action. We conclude that the effect of these several changes in the pleadings was such as to permit the court, as was done, to consider and pass upon the demurrers which were sustained. SeeKelly v. Strouse,
2. Having held that the amendments opened the petition to demurrer, then the question is, did it, with the amendments, set out a cause of action? In so far as the petition as amended sought to subject or lay claim to the property of the four debtor legatees as their property, it is to be remembered that before its sale the title to said property vested in the executors, after their appointment, and afterward in the administrators d. b. n. c. t. a., it not appearing that there had been any assent on their part to the legacies of these four children of the deceased. "All property, both *101
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. This section applies with equal force to an administrator cum testamento annexo. SeeMartin v. Walker,
The plaintiff's petition, taken in connection with the contract of sale attached to the amendment of March 22, 1938, shows that these debtor heirs under whom the plaintiff claims to hold were indebted to the extent of, if not more than, their interest or distributive *102
share. It was alleged that the deed conveying the property was delivered to Hinton as escrow agent, to be held by him and delivered to the nine legatees (defendants) when all the debts of the estate had been paid and when full settlement of theinterest of all the heirs of said estate had been legally effected. Hinton delivered the deed, and there is no allegation that he did not do his full duty or that he did not effect appropriate settlement in adjusting the interests of all the heirs. The contract to which all of the parties assented recited that "they have already received the full amount of their distributive shares in said estate, and that the nine heirs hereinabove mentioned are the only heirs to share in said estate." The purported facts so stated in the contract appearing in the amendment to the petition were not negatived or challenged anywhere. In Lester v. Toole,
3. What has been said substantially controls also as to the other grounds upon which the plaintiff rests his claim to relief. It is seen from the foregoing that just as the one fatal bar to the seizure of any property or funds as belonging to the four legatees is founded on the failure to show any interest which they had in the estate belonging the them, so it would likewise follow that no accounting could be had in the absence of a clear showing that there was something due. See Gould v. Barrow,
Judgment affirmed. All the Justices concur.