183 Ga. 760 | Ga. | 1937
The plaintiff sued in ejectment to. recover a one-fourth interest in a house and lot in Atlanta. The defendant filed a plea of not guilty, and a plea that the plaintiff, claiming as a devisee under the will of her father, was estopped from asserting that the executor of the will had assented to the devise, and from denying that title to the property devised was in the subsequently appointed administrators de bonis non cum testamento annexo at the time of their public sale of the realty of the estate, including the property in dispute, and of the administrators’ deed to the purchaser, under which the defendant claimed; the basis of such alleged estoppel being that the plaintiff joined in a written request by all four devisees to the ordinary for the appointment of such administrators, upon their petition setting forth that the will remained unexecuted. The evidence showed the following essential facts: The will devised the property to the decedent’s wife, the mother of the plaintiff and her three brothers, for life, with remainder to the plaintiff and her brothers,' and named the mother as executrix and the Trust Company of Georgia as successor or alternative executor in case of her death. The plaintiff lived in Chicago. Two of the brothers lived in Atlanta; the third lived in that city, except in 1928 and 1929. The testator father died in 1925, and the mother then qualified as executrix. There was testimony that after the testator’s death, she “went into possession of the property in dispute,” and “treated it as her own property;” that she gave two checks on her individual bank account for $109.50 to make repairs on the house; and that she moved into it from another residence about sixty days after the testator died, and lived in the house for about three years, until 'her death in 1928. Thereafter, on August 7, 1928, letters testamentary issued to Trust Company of Georgia, the successor executor.' On July 24, 1928, the plaintiff had executed a power of attorney to a brother, who was one of the devisees, expressly giving to him the authority “to execute and sign my name to any and all legal petitions, papers, acknowledgments of service on petitions, court orders, and any and all other documents in connection with the administration of the estate of my mother . . and my father, . . and to collect and receive any and all money or property to which I may be entitled from either of said estates, giving and granting unto my said attorney full and whole
With respect to the ruling in paragraph 6 of the syllabus, it appears from the statement of facts that subsequently to any vesting of the realty, including the property in dispute, in the plaintiff and the other devisees as tenants in common, by the assent of the trust company as the second or intermediate representative of the estate, the plaintiff together with one of the other devisees approved in writing an application by the other two devisees for their appointment as administrators de bonis non cum testamento annexo. In this application, approved by the plaintiff, it was set forth that the will remained unexecuted, and that consequently it was necessary that such administrators be appointed. It was these administrators who obtained an order for the sale of the realty belonging to the testator’s estate, and they did sell it for the expressly stated purpose of paying debts and distribution. The defendant claims under the purchaser at that sale. The allegations in the petition for the appointment of the administrators de bonis non cum testamento annexo, as approved by the plaintiff in writing, are in direct conflict with the statements contained in the previous proceeding, upon which the plaintiff relies as constituting an assent by the trust company, as the second executor under the will, to the vesting of the realty. At the time the trust company resigned and may have assented to the legacy, it was agreed by it, by the ordinary, and by all the devisees, including the plaintiff, that the estate had been fully administered, save and except as to the payment of one or more debts secured by the realty, and was in the possession and control of the devisees, who held title thereto. Therefore it follows that the only purpose of the plaintiff’s request for the appointment of the third and last representatives of the estate was to pay debts owing by the estate and to make distribution out of the proceeds of sale of the realty, including the property in dispute, which necessarily constituted the only property that the devisees could possibly have had in mind as available for this purpose. The plaintiff, having thus aided, and so impliedly consented to, a public sale of the property for such purpose, is estopped from setting up, against one holding under a purchaser at such sale, that the property sold did not in fact constitute a part of the estate, but had already vested in her by the
Judgment reversed.