Morrison v. Morrison

• Decision Date: 09 October 1939
• Parties: MORRISON et al. v. MORRISON et al.
• Court: Georgia Supreme Court

4 S.E.2d 776

MORRISON et al.

v.MORRISON et al.

Supreme Court of the State of Georgia

Oct. 9, 1939.

Rehearing Denied Nov. 24, 1939.

Appeal from Circuit Court, Princess Anne County; B. D. White, Judge.

Suit in chancery by Carrie B. Morrison against Walter L. Morrison, Hope Morrison, and others, and Carrie B. Morrison as administratrix of the estate of Edgar H. Morrison, deceased, to settle the accounts of the administratrix and the es-tate of her intestate and to subject the estate to the payment of an indebtedness due the complainant individually. From an adverse decree, Hope Morrison and others appeal.

Decree modified and as modified affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Meade & Talbott, of Danville, for appellants.

W. R. Ashburn, of Norfolk, for appellees.

BROWNING, Justice.

This is a suit in chancery to settle the accounts of Carrie B. Morrison, administratrix of the estate of Edgar H. Morrison, deceased, to settle the estate of her intestate, to subject the same to the payment of the alleged indebtedness due the complainant, and if the personal estate of the decedent be insufficient to pay the debts then to ascertain the relationship of the indebtedness, as to its payment, to the real estate of which he died seized and possessed, located in the states of Virginia and North Carolina.

Carrie B. Morrison, who was Carrie B. Williams, and Edgar H. Morrison, who was a retired physician, were married in May, 1929. Both of them had been married before. They were persons of considerable means. She was worth some seventy thousand dollars, which consisted of securities which she inherited from her father and which she had managed and controlled for a number of years previous to her marriage to Dr. Morrison. Dr. Morrison's estate consisted principally of real estate located in Virginia and North Carolina. His Virginia real estate was quite valuable and is located in the town of Virginia Beach, consisting of houses and lots used for both residential and business purposes. He was a resident of Virginia Beach. His North Carolina property consisted chiefly of real estate. He owned two large farms in that state and a residence in the town of Tarboro, which he occupied for a portion of each year. His personal property at each of his places of abode consisted mainly of household effects.

Though they had married, each of them continued to manage and control his or her separate estate. At the time of their marriage, Dr. Morrison was in debt to the extent of about $18,000. He relied upon his rentals, which were estimated at from $12,000 to $17,000, for his sustenance and to pay his interest and his indebtedness. His wife and himself were cognizant of the financial condition of each other and enjoyed the mutual confidence of each other.

Dr. Morrison wished to improve his Virginia Beach properties for the two-fold purpose of their preservation and an increase of their rental values. He needed considerable money to accomplish this. The amount necessary was between $15,000 and $20,000. Some of Mrs. Morrison's securities were in the form of U. S. Liberty Loan Bonds, which yielded her less than five per cent interest. He suggested that it would be to their mutual interest to dispose of some of these securities and for her to lend him the money which he needed, for which he would pay her six per cent and when he finished paying his indebtedness to the Merchants and Mechanics Savings Bank of Norfolk, Virginia, he would pay the principal due her, and if anything happened to him before this occurred she would be paid out of his estate. This we have from Mrs. Morrison's testimony and incidents appearing in the record to be presently noted.

Dr. Morrison's indebtedness to Mrs. Morrison amounted to $15,578, with accruals of interest. It consisted of six separate loans as follows:

                --------------------------------------
                |No. 1 Tune30, 1929.     |$ 1, 000.00|
                |------------------------|-----------|
                |No. 2 November 2'9, 1929|4, 000.00  |
                |------------------------|-----------|
                |No. 3 February 3, 1930  |5, 000.00  |
                |------------------------|-----------|
                |No. 4 March28, 1930     |250.00     |
                |------------------------|-----------|
                |No. 5 May 6, 1930       |5, 000.00  |
                |------------------------|-----------|
                |No. 6 December 24, 1930 |328.00     |
                |------------------------|-----------|
                |Total                   |$15,579.00 |
                --------------------------------------
                

Dr. Morrison died on April 2, 1936, intestate. At that time he had reduced his indebtedness to the bank to $6,500. When he secured the original loan of $20,000 from the bank he executed a deed of trust on certain of his Virginia Beach property securing notes or bonds, which he placed with the bank as collateral security for his indebtedness to it.

Dr. Morrison had no children by either marriage. He left as his heirs at law his wife, Carrie B. Morrison, who, as plain-tiff, filed the bill referred to, and two brothers and two sisters, who, with Carrie B. Morrison, administratrix of Edgar H. Morrison, deceased, were defendants. Certain of the defendants, by their answer, denied that the estate of Edgar H. Morrison was indebted to Mrs. Morrison at all and alleged that her claim, if valid, was barred by the statute of limitations and they denied the right of the Virginia court to charge the North Carolina real estate with the payment of any part of Dr. Morrison\'s reputed indebtedness and alleged that the amount due to the bank by said estate and the amount alleged to be due to Mrs. Morrison represented money which had been expended by him in improving and enhancing the value of the Virginia real estate and its payment should be enforced exclusively out of such real estate.

A decree was entered in the suit referring it to N. T. Green, Esq., Special Master, to enquire and report as to the matters in issue, which have been referred to. Witnesses offered by the conflicting parties in interest were examined before the Special Master, and their testimony was transcribed and forms a part of the record.

The Special Master, who is a distinguished lawyer, presented a learned and exhaustive report determinative of the questions submitted to him, and other allied matters, which were suggested by his legal acumen.

The refutation of the plaintiff's claim against the estate by the contesting defendants was their laboring oar. It was the subject of their chief attack, which was based on the contention that the requirements of Section 6209 of the Code of Virginia had not been met. That section provides, in part, that in a suit against one who, from any cause, is incapable of testifying, or by or against the personal representative of one so incapable of testifying, no judgment shall be rendered in favor of the plaintiff founded on his uncorroborated testimony.

They urge that the testimony of Mrs. Morrison to prove the indebtedness due her and its. mode and time of payment is uncorborated, and therefore, she being the only witness who testified as to its existence, it has not been established. The Special Master reported that the complainant's claim, with the accrued interest, is a valid and subsisting charge against Dr. Morrison's estate.

It is well to say here that the chancellor confirmed the report in all respects.

This court has said time and again that the conclusions of a Special Master, or Commissioner, based upon testimony taken before him, approved by the trial court or chancellor, will not be overruled or reversed unless it plainly appears that error has been committed. First Nat. Bank of Lexington v. Weinberg, 165 Va. 433, 182 S.E. 250; Boston v. Shackelford, 162 Va. 733, 175 S.E. 625.

The annotator's note on this subject in Michie's Digest, Vol. 8, page 568, is this:

"Report is Entitled to Great Weight on Appeal.—The rule is that where questions purely of fact are referred to a commissioner to be reported upon, the findings of the commissioner, while not as conclusive as the verdict of a jury, will be given great weight, and should be sustained unless it plainly appears that they are not warranted by any reasonable view of the evidence, operates with peculiar force in an appellate court where the findings of the commissioner have been approved and sustained by the decree of the inferior court."

Mrs. Morrison's testimony as to each of the loans made to her husband is corroborated by her cancelled checks for the precise amounts, less in two instances the interest which had accrued on Liberty Loan bonds, which was retained by her, the dates of the said cancelled checks corresponding to the bank's record of the credit of the amounts to Dr. Morrison's account, and in the instances of checks which were drawn by Mrs. Morrison, and charged to her account, there was a perfect correspondence of dates. In the two cases in which she sold her bonds, the details of the transactions are testified to by the investment banker, who made the sales, and there is also a correspondence of the dates with the checks and bank notations.

We quote here the statement of the Special Master, couched in apt language:

"Each item of that indebtedness is traced to the complainant as the source of the money and to Doctor Morrison as the recipient of the same from her. The deposits to Doctor Morrison's bank accounts coincide in times and amounts with withdrawals of like amounts from the property of the complainant with startling and impressive emphasis."

In addition to what we have said on the subject, we note that on March 28, 1936, Dr. Morrison executed his last will in which appears this direction to the executor: "* * * pay all my just debts, including debts due my wife, Carrie Biggs Morrison, as soon after my death as may be reasonably convenient in the administration of my estate * * *." (Italics supplied.)

It is true that the will, made five days before his death, was never found, but the fact of its execution and its contents were proven by Mrs. Cannon,...