Barron v. Barron

• Decision Date: 11 December 1935
• Docket Number: 11003,11004.
• Citation: 182 S.E. 851,181 Ga. 505
• Parties: BARRON et al. v. BARRON et al. (two cases).
• Court: Georgia Supreme Court

182 S.E. 851

181 Ga. 505

BARRON et al. v. BARRON et al. (two cases).

Nos. 11003, 11004.

Supreme Court of Georgia

December 11, 1935

Syllabus by the Court.

1. Where the defendants in a suit were required to interplead and the trial resulted in a verdict against two who were similarly situated, it was permissible for them to join in a single motion for a new trial, notwithstanding they had filed separate answers.

2. Where money or property is transferred by a parent to his child, and is accepted, the question whether the transfer is to be treated as an advancement depends upon the intention of the parent at the time of the transaction, without regard to concurrence on the part of the child.

3. Where at the times of the several such transfers, the parent took from the child promissory notes providing for the payment of the principal together with interest and attorney's fees, and containing waivers of homestead, and some of the notes were secured by a deed to real estate these facts raised a presumption that the transfers were intended as loans, and the presumption, if not conclusive was yet of such force that it could be overcome only by clear and satisfactory evidence. In the present case, the evidence relied on as contrary, consisting mainly of subsequent declarations of the parent, which in the light of the circumstances were vague and indefinite, was insufficient as rebuttal, and the verdict finding that the notes represented advancements instead of debts was unauthorized.

Error from Superior Court, Jones County; James B. Park, Judge.

Suit by Mrs. Ida M. Barron and another, administratrices of the estate of W. W. Barron, Sr., deceased, against J. J. Barron and others. To review the judgment, after their motion for a new trial was overruled, some of defendants bring error, plaintiffs filing a cross-bill of exceptions.

Reversed on the main bill of exceptions, and affirmed on the cross-bill.

HUTCHESON, J., dissenting.

Smith & Smith, of Macon, for plaintiffs in error.

Feagin & Feagin, of Macon, and Joe Ben Jackson, of Gray, for defendants in error.

BELL Justice.

W. W. Barron, Sr., died intestate, in April, 1932, leaving as his heirs at law his widow, Mrs. Ida M. Barron, and five children, as follows: Miss Ben Barron, Mrs. Kate Ross, Mrs. Annie B. Childs, J. J. Barron, and W. W. Barron, Jr. Mrs. Ida M. Barron and Miss Ben Barron were appointed administratrices. In their capacities as such they brought a suit against the other heirs at law, for direction and for other equitable relief. The petition prayed that the heirs be required to interplead in regard to their respective interests in the estate, in view of certain contentions as to debts and advancements. The court ordered an interpleader as prayed, and all defendants filed answers. On the trial the court submitted the following issues, among others, by questions to be answered by the jury: (1) The market value of the estate, exclusive of notes held against heirs. (2) The amounts due to the estate by the two sons, J. J. Barron and W. W. Barron, Jr., respectively. (3) Whether these amounts were due upon loans made to his sons by the intestate, or were advancements to be accounted for in distribution. The amounts claimed against the sons were represented by notes which they had separately executed to their father during his lifetime, and it was the contention of the administratrices and the other heirs at law that these sums should be charged as advancements, while the sons contended that they were debts from which they had been discharged in bankruptcy respectively, with the exception of such notes as were executed after bankruptcy. The notes provided in express terms for the payment of interest and attorney's fees, and contained waivers of homestead. The notes made by J. J. Barron were secured by a deed to real estate. The petition with exhibits showed that the estate, exclusive of the notes, was worth approximately $7,000, and the jury found its value to be about $6,000. The jury also found that the notes represented advancements, and not debts, and fixed the amounts at $1,762.58 as to J. J. Barron, and $4,480.48 as to W. W. Barron, Jr. These two parties, who had filed separate answers, joined in a motion for new trial. The administratrices moved to dismiss the motion for new trial, on the grounds that the claims of these defendants "were dependent upon different evidence in the record, that separate questions were propounded to the jury as to their separate claims and separate findings were made by the jury in the verdict as to their separate claims, and that a joint motion for new trial would not lie, but that it was necessary under the law for W. W. Barron and J. J. Barron each to file his separate motion for new trial in said case, and that the joint motion as filed by them was a nullity." The court overruled the motion to dismiss, but refused to grant a new trial. J. J. Barron and W. W. Barron, Jr., excepted to the overruling of their motion for a new trial, and the administratrices brought a cross-bill of exceptions assigning error on the overruling of their motion to dismiss. Other facts will be stated in this opinion.

1. There was no merit in the motion to dismiss the motion for a new trial. The record shows but one case, and it was permissible for the defendants, similarly situated, to file a joint motion for a new trial, even though separate answers had been filed by them. Butler v. Lewman, 115 Ga. 752, 42 S.E. 98; East Atlanta Land Co. v. Mower, 138 Ga. 380, 75 S.E. 418; Higdon v. Bell, 144 Ga. 485, 87 S.E. 385; Jefferson Banking Co. v. Trustees of Martin Institute, 146 Ga. 383, 91 S.E. 463; Estill v. Estill, 147 Ga. 358, 94 S.E. 304; Powell v. State, 152 Ga. 81, 108 S.E. 464; Moore v. Adams, 153 Ga. 709, 113 S.E. 383, 23 A.L.R. 925; Washington v. State, 159 Ga. 416, 125 S.E. 836; Carolina Portland Cement Co. v. Charles N. Walker Roofing Co., 163 Ga. 33, 135 S.E. 503; Citizens' & Southern Bank v. Palmer, 164 Ga. 557, 139 S.E. 27; Young v. Cochran Banking Co., 166 Ga. 877, 144 S.E. 652; Walden v. State, 9 Ga.App. 584, 71 S.E. 945; Ellis v. Geer, 36 Ga.App. 519, 137 S.E. 290. This ruling is not contrary to decisions holding that where two or more cases are consolidated merely for the purpose of trial, they cannot be reviewed jointly. Compare Valdosta Guano Co. v. Hart, 119 Ga. 909, 47 S.E. 212; Averitt v. Simpson, 147 Ga. 352, 94 S.E. 242; Cutter v. Central Bank & Trust Co., 147 Ga. 754, 95 S.E. 285; Wall v. Mann, 163 Ga. 42, 135 S.E. 407; Jennings v. Longino, 172 Ga. 696, 158 S.E. 565; Beck & Jones v. Chenoweth-Holder Lumber Co., 170 Ga. 367, 152 S.E. 899.

2. The motion for new trial assigned error on the following excerpts from the charge of the court to the jury: (a) "Was the amount due to the estate of W. W. Barron Sr., by J. J Barron, a loan or an advancement? Now that is a question of fact for you to answer. The plaintiffs in this case and the representatives of the estate of W. W. Barron Sr. contend that the amount due by J. J. Barron to the estate of W. W. Barron Sr. were advancements made by his father to J. J. Barron, that they were advancements, and that he did not intend to collect those amounts, but he intended that J. J. Barron should account for them in the distribution of his estate. Now in passing upon that question you take into consideration all the facts and all the circumstances in this case, and if you reach the conclusion that at the time that these notes were given by J. J. Barron to his father, W. W. Barron Sr., if from all the facts and circumstances it was the intention that these amounts due upon these notes at the time they were taken were intended as a debt, and that W. W. Barron Sr. intended to collect in his lifetime, why then under those circumstances they would be debts. On the other hand, after considering all the facts in this case, and after considering all the circumstances in this case, if you reach the conclusion that W. W. Barron Sr. did not intend to collect those debts, but they were to be an advancement to J. J. Barron to be accounted for in the distribution of his estate, why then under those circumstances they would be considered in law advancements." (b) "Was the amount due to the estate of W. W. Barron Sr., by W. W. Barron Jr., a loan or an advancement? And on that question, after considering all the facts in this case and after considering all the circumstances developed in the trial of this case, if you reach the conclusion that W. W. Barron Sr. intended to collect those notes from W. W. Barron Jr., that is, that he intended to collect them, why then under those circumstances they would be considered in law as debts; but if, from all the facts and circumstances in this case, you reach the conclusion that he did not intend to collect them, but intended for W. W. Barron, Jr. to account for them in the distribution of his estate, why then in law they would be considered advancements." As to each of these charges the motion alleged: "Said statement was an incorrect statement of law, in that the court charged the jury that whether said notes represented loans or advancements depended upon whether the deceased 'intended' to collect in his lifetime; whereas the true test is whether or not there was such an understanding or agreement as would deprive the deceased of the right and power to collect in his lifetime. Said notes could not at the same time represent both valid collectible debts and advancements." The charges complained of were not erroneous for any reason assigned. It is settled law in this state that where money or property is transferred by a parent to his child, and is accepted, the question whether the transfer is to be treated as an advancement depends upon the intention of the parent at the...