Adams v. Lay

• Decision Date: 22 October 1962
• Docket Number: No. 21739,21739
• Citation: 218 Ga. 451,128 S.E.2d 502
• Parties: Elsie Lay ADAMS v. James LAY et al.
• Court: Georgia Supreme Court

Page 502

128 S.E.2d 502

218 Ga. 451

Elsie Lay ADAMS v. James LAY et al.

No. 21739.

Supreme Court of Georgia.

Oct. 22, 1962.

Rehearing Denied Nov. 8, 1962.

Syllabus by the Court

1. While a mother may by will appoint guardians for property which she devises

to her minor child, and if she is the surviving parent may appoint guardians for the person of her minor child, there is no evidence that an effective appointment was made because the record fails to show the age of the child or anything from which it may be calculated and fails to show whether or not the mother was the surviving parent.

2. (a) The agreement as to the rental of the house is not sufficiently definite as to time to be enforceable against the parties.

(b) Plaintiff having introduced evidence supporting the allegations of her petition as to her right to restrain defendants from collecting the rents from the house, some of the relief prayed, it was error for the trial court to grant a nonsuit.

The judgment of the trial court granting a nonsuit and dismissing the petition is assigned as error. The petition of Elsie Lay Adams alleged that her brothers James Lay and Harold Lay, individually and as coexecutors of their mother's estate, are indebted to plaintiff in the sum of $2,605.85 or other sums; that their mother's will requires defendants to pay plaintiff $100 per month and gives plaintiff a life estate in a certain house and property; that on or about August 27, 1957 defendants had plaintiff committed to Milledgeville State Hospital where she remained until on or about July 13, 1959; that while in the hospital defendants rented the house for $150 per month, for which rents defendants accounted to plaintiff after her release, but that during the time plaintiff was in the hospital defendants did not pay her the $100 per month due her under the will; that on July 29, 1959, plaintiff entered into a written agreement with defendants that they would rent the house for $150 a month, paying plaintiff $100 and retaining $50 to pay for insurance, taxes and normal upkeep; that defendants have paid plaintiff $100 per month from the rents up to the present time along with the $100 per month due under their mother's will, from July 29, 1960; that plaintiff notified defendants that she was canceling the agreement of July 29, 1959 and notified the tenant to pay all future rents directly to plaintiff; that because plaintiff has married she desires to occupy the house at the expiration of the present tenant's lease; that defendants have refused to stop collecting the rents and will continue to do so unless restrained; that defendants owe plaintiff an accounting in the amount of $100 per month from August 27, 1957 to July 29, 1959, the period during which plaintiff was in the hospital, and further in the amount of $50 per month retained by defendants from the $150 rental received, from August 1959 to date of final accounting. Plaintiff prays an accounting for the sums due and that defendants be restrained from collecting the rents from the house.

Rupert A. Brown, Athens, for plaintiff in error.

Stephens, Fortson, Bentley & Griffin, Edwin Fortson, Athens, for defendants in error.

MOBLEY, Justice.

1. Plaintiff introduced into evidence her mother's will, item 8 of which provides as follows: 'I appoint James William Lay and Harold Lay as guardians of the person and property of Elsie Lay to manage the same as they see fit, give her what money they think necessary; and in the event that it becomes necessary for her care, they may at their discretion sell the property at 1751 South Lumpkin Street and use it for her necessary expense.'

If this provision of plaintiff's mother's will is effective, the court was correct in granting a nonsuit because the plaintiff would have established for the defendants a complete defense to this action in that defendants as testamentary guardians of the person and property of plaintiff would be entitled to manage plaintiff's property as they see fit, giving her what money they think necessary, and plaintiff would not be, as she alleged, entitled to demand of defendants a particular sum of money or the rents from or possession of the house. Ables v. Motor Contract Co., 200 Ga. 30(1), 36 S.E.2d 148.

The effectiveness of the provision depends upon the answer...