In re Engram

• Decision Date: 19 January 1957
• Docket Number: 2316.,No. 2313,2313
• Citation: 156 F. Supp. 342
• Parties: Matter of B. Sam ENGRAM, Bankrupt.
• Court: U.S. District Court — Middle District of Georgia

156 F. Supp. 342

Matter of B. Sam ENGRAM, Bankrupt.

Nos. 2313, 2316.

United States District Court M. D. Georgia, Columbus Division.

January 19, 1957

T. T. Molnar, Cuthbert, Ga., for Walter E. Taylor, trustee.

Joe M. Ray, Cuthbert, Ga., Stone & Stone, Blakely, Ga., for Mabel Dell Engram.

BOOTLE, District Judge.

The petition for review, filed by Mrs. Mabel Dell Engram, the mother of the bankrupt, presents the question whether the Referee erred in permanently enjoining her from proceeding with her application in the Court of Ordinary of Clay County, Georgia, for a statutory twelve months support out of the estate of her deceased husband, bankrupt's father.

The record shows that bankrupt's father, Samuel Franklin Engram, died intestate on November 9, 1952, leaving surviving him his widow, Mrs. Mabel Dell Engram, and two sons, one of whom is the bankrupt. On May 18, 1953, the widow was appointed temporary administratrix. On March 7, 1955, she made application for appointment as permanent administratrix. On March 5, 1955, she made application to the Court of Ordinary for a statutory twelve months support under the provisions of Section 113-1002 of the Code of Georgia Annotated.

On March 30, 1955, an involuntary petition in bankruptcy was filed against B. Sam Engram by three of his creditors and on the following day, March 31, 1955, the same creditors filed in this court their petition for equitable relief alleging that B. Sam Engram had been adjudicated a bankrupt and praying that bankrupt's mother, Mrs. Mabel Dell Engram, be enjoined from proceeding further with her application for a twelve months support. After the appointment of the Trustee in bankruptcy, he was made a party plaintiff in said petition for equitable relief and adopted the petition of the creditors. In the meantime, and, on March 8, 1955, the appraisers, appointed by the Court of Ordinary for the purpose, filed their report with said Court setting aside certain real estate and household furniture as being necessary for the support and maintenance of said widow and valued at $4,500. In accordance with the regular procedure, the Court of Ordinary cited all persons concerned to show cause before the Court of Ordinary on the first Monday in April, 1955, why said application should not be granted.

Upon the filing of this ancillary petition for injunction, and on March 31, 1955, this Court referred the same to the Referee "to take such further proceedings therein as are required and permitted by the Act of Congress relating to bankruptcy." The widow filed her motion to dismiss said ancillary petition contending that this Court lacks jurisdiction to enjoin her from proceeding with her petition for a year's support out of the estate of her deceased husband because:

"a. In so far as the property inherited by the bankrupt B. Sam Engram from his father is concerned, this Court can only deal with the title of the bankrupt and that title is inferior to a Year's Support for his mother out of his father's estate;

"b. The creditors of an heir cannot contest with the widow of the heir's intestate her right to a Year's Support out of the estate of said intestate;

"c. This Court is without jurisdiction to determine whether or not Mrs. Mabel Dell Engram should be awarded a Year's Support, and whether or not she had already received such a support at the time she filed her petition therefor;

"d. As appears from the allegations of the petition, the Year's Support had already been set aside to Mrs. Mabel Dell Engram at the time of the filing of the petition of Well Dairies Co-operative et al. in this Court, and there is no further act or thing which she can do in connection with granting of the Year's Support, and therefore no act or conduct that can be enjoined."

The Referee never formally acted upon this motion to dismiss, but treated his findings of fact, conclusions of law and judgment, hereinafter mentioned, as having the effect of overruling said motion to dismiss. After a number of hearings, the Referee, on June 15, 1956, made his findings of fact, finding the facts as hereinabove stated and additionally that bankrupt's father left an estate of over 200 acres of land with a house and certain moneys and bonds; that the widow moved from said home after the death of her husband, but collected whatever rents there were for the years 1952 through 1955; that she made no application for a year's support prior to March 5, 1955; that her application for appointment as temporary administratrix was for the purpose of collecting the proceeds of insurance, etc., and that she lived out of the moneys so collected; that she has made no accounting to the two sons for the personal property of the estate; that bankrupt was insolvent at the time when a petition for a receiver had been filed against him in the Superior Court of Randolph County on September 11, 1955; that the widow never figured on claiming a year's support until after the filing of said petition for a receiver and that it was only at the insistence of the attorneys who represent both her and the bankrupt that she made a claim; that said application for twelve months support was made solely to hinder, delay and defraud the creditors of bankrupt who had a one-third interest in said estate of his father; that the widow, by her failure to claim a year's support earlier, is estopped from claiming it now to defeat bankrupt's creditors; that the appraisers set aside the entire estate of bankrupt's father with the exception of a small tract on the edge of the house and lot tract and that the part left was of only a few hundred dollars value (the evidence shows that the deceased owned something over 200 acres and that the appraisers set apart 58.08 acres, which, however, contained the improvements); that the moneys collected by the widow were spent by her as temporary administratrix and were unaccounted for and was approximately the same amount as set apart to her and that she had had at least two years support out of the estate. The Referee then concludes as a matter of law that the application for the year's support was made for the deliberate purpose of hindering, delaying and defrauding bankrupt's creditors and, accordingly, he entered a judgment enjoining the widow permanently from proceeding any further with her year's support.

In the opinion of this Court the widow's motion to dismiss the ancillary petition for equitable relief should have been sustained, that the Referee erred in not sustaining it and that it is not necessary for the Court to express any opinion with respect to his findings of fact and other conclusions of law.

Under the rules of inheritance in Georgia the widow and two sons were entitled to inherit equally the decedent's estate. Georgia Code Annotated, § 113-903, subds. 3, 4. Upon decedent's death the title to his real estate vested immediately in his widow and two sons "subject to be administered by the legal representative * * * for the payment of debts, and the purposes of distribution." Georgia Code Annotated, § 113-901. The title to personalty vested in the administrator for the benefit of heirs and creditors. Georgia Code Annotated, § 113-901. The widow, however, was entitled also to a twelve months support which ranks "among the necessary expenses of administration, and to be preferred before all other debts, except as otherwise specially provided * * *". Georgia Code Annotated, § 113-1002. As the widow's attorneys frankly concede in their brief "of course, if Mrs. Engram had received one year's support she would not be entitled to take another under the statute." Moreover, "the laws of Georgia allow a widow one year's support for herself and children out of the estate of her deceased husband; * * * the laws do not contemplate that she shall live at the homestead and consume the provisions belonging to the estate and have a year's support in addition to what she may thus have consumed, allowed to her; * * * in all applications for a year's support to be assigned her, she must be held chargeable with the value of what she had previously consumed." Wells v. Wilder, 36 Ga. 194. See also Hill v. Hill, 55 Ga.App. 500, 502, 190 S.E. 411, and Smith v. Smith, 73 Ga.App. 567, 572, 37 S.E.2d 439. Also "Long lapse of time between the death of the husband and the widow's application for year's support may be considered by the ordinary in connection with other facts tending to show that the widow had received a support from the estate or had waived it expressly or impliedly. And in passing upon the application the ordinary should give weight to evidence as to such facts in determining the amount to be granted, or whether the application should be wholly refused." Federal Land Bank of Columbia v. Henson, 166 Ga. 857(5), 144 S.E. 728, 734.

The fundamental rule of law applicable here is of such long standing that in the case of Peck v. Jenness, reported in 7 How. 612, 48 U.S. 612, 12 L.Ed. 841, it was remarked, "It is a doctrine too long established to require a citation of authorities * * *." The rule of law referred to and the full quotation are:

"It is a doctrine of law too long established to require a citation of authorities, that, where a court has jurisdiction, it has a right to decide every question which occurs in the cause, and whether its decision be correct or otherwise, its judgment, till reversed, is regarded as binding in every other court; and that, where the jurisdiction of a court, and the right of a plaintiff to prosecute his suit in it, have once attached, that right cannot be arrested or taken away by proceedings in another court. These rules have their foundation, not merely in comity, but on necessity. For if one may enjoin, the other may retort by injunction, and thus the parties be without remedy; being liable to a process for contempt in one, if they dare to proceed in the other. Neither can one take property from the custody of the other by replevin or any other

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