Bonner v. Bell
| Decision Date | 12 October 1949 |
| Docket Number | 16824. |
| Citation | 55 S.E.2d 612,206 Ga. 98 |
| Parties | BONNER et al. v. BELL et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Under the following provision of the will here in question 'I desire that such executrix have full power to handle and dispose of my estate, without making any bond, and that such executrix be in no manner restricted in the handling of my said estate,' in the absence of other provisions showing that the testator's intention was to authorize the executrix to sell the real and personal property of the estate at private sale, the executrix was without power to sell the real or personal property of the testator's estate at private sale.
(a) Consequently, the court did not err in permitting the defendant executrix to answer, 'No, sir,' to the question, 'No property was ever advertised, no personal property was ever advertised of the estate?'
2. There was no error in sustaining the objection made to the question, and the answer thereto of the witness, which question invoked a conclusion of such witness.
3. The court did not err in directing a verdict for the plaintiffs, or in overruling the defendants' motion for new trial as amended.
This case is here on a writ of error complaining of the overruling of a motion for new trial as amended.
B F. Banks died testate in 1932. By Items 2, 3, and 4 of his will, he devised and bequeathed all of his real and personal property to his wife 'during her natural life and during her widowhood,' and provided that upon her death or remarriage certain special bequests be paid to his daughter, Joannah Bonner, and two of the testator's grandchildren. Item 5 provided: 'After deducting the above special bequests, which are made for the purpose of equalizing the distribution of my estate to that extent, it is my will that the remainder of my estate be divided equally among my heirs at law.' In Item 6, he appointed Joannah Bonner as executrix of the will, and provided: 'I desire that such executrix shall have full power to handle and dispose of my estate, without making any bond, and that such executrix be in no manner restricted in the handling of my said estate.'
Mrs. Cliff Bell and four other parties, alleging themselves to be heirs at law and legatees under the will of B. F. Banks, filed their petition in Heard Superior Court against Mrs. Joannah Bonner, in which they alleged: That Mrs. Bonner qualified as executrix of said will, and together with her husband, L. L. Bonner, took over said estate. The life tenant died in 1943, and very little of the estate was consumed by her during her widowhood. At the time of the death of B. F. Banks, he was the owner and in possession of real estate, stock, bonds, and money, which Mrs. Bonner took possession and control of as executrix. The executrix has never made any return, but permitted her husband to take charge of the estate, and he deposited all the money and funds with his private money and funds. The executrix and her husband sold the real estate of said estate at private sale without obtaining an order of court. At the time of the death of the decedent, he owned and possessed '$25,500 shares of stock in cement stock,' which the defendants sold at private sale for $2500. It was alleged that the sales of real estate were illegal and void, because such property was sold at private sale and without any order of court.
By amendments to the petition, L. L. Bonner, the husband of the executrix, and B. B. Payton, O. M. B. Taylor, and Paul Mulan, alleged purchasers of the real estate from the executrix, were made parties defendant.
The prayers of the petition as amended were: that the sales of real estate be declared to be null and void, and the deeds conveying the property described in the petition as amended be declared null and void, and title to said property be vested in the executrix for the use of petitioners; that the executrix and her husband be required to account and show what property was received and what disbursements were made; that the plaintiffs as legatees have and recover such amounts as may be shown to be due them; and that appeals from the court of ordinary pending on citations for settlement on the part of the executrix be consolidated and tried in this suit.
The defendant executrix filed an answer, denying the substantial allegations of the petition, and asserting that the sales of real estate and stock belonging to the estate were made under the power to sell contained in the will of the testator, and that she had made full accounting therefor. L. L. Bonner in his answer denied all the substantial and material allegations of the petition. The three parties who were alleged to have purchased the real estate from the executrix in their answers admitted they had purchased separately the tracts of land described in the petition, but denied that the sales were irregular or invalid.
It appears from the record that when the case was called for trial, after one of counsel for the executrix had made a statement to the jury, a colloquy occurred between counsel for the parties and the court, in which the defendants' counsel admitted that all sales made by the defendant executrix were without order of court, without advertising, and at private sale. In this discussion, the judge stated in effect that, whether the executrix under the will was authorized thus to make private sales 'is a question of law,' and that there was 'nothing to try before the jury except as to the personal property, what was done with reference to the personal property.'
The case then proceeded to trial, and after the introduction of evidence the court directed a verdict for the plaintiffs, and a final decree was entered thereon. The defendants' motion for new trial as amended was overruled, and they excepted.
The parties will be referred to here in the positions which they occupied in the trial court.
Emmett Smith, Carrollton, Earl Staples, Carrollton, R. J. Brown, Carrollton, for plaintiffs in error.
Boykin & Boykin, Carrollton, Willis Smith, Carrollton, for defendants in error.
It appears from the foregoing statement that--counsel for the defendants having stipulated that the real and personal property of B. F. Banks' estate was sold by the executrix at private sale, without advertisement, and the question whether the will of the testator authorized the executrix to sell such property at private sale being one of law--the sole issue of fact remaining in the case was whether the executrix had made a proper accounting of the proceeds of the sales of personal property. Under the direction which the judge gave to this case, it is apparent that he held as a matter of law that the provisions of the will did not empower the executrix to sell either the real or personal property at private sale.
Special grounds 1 and 2 of the motion for new trial complain that the court erred in allowing answer to be made to two questions propounded to the executrix while she was being examined as a witness--as to whether or not she had obtained orders of court to sell the stock or other property of the estate; also whether the sale of the property had been advertised. Over objection of counsel for the defendants that under the will the executrix would not have to obtain an order, and did not have to advertise the property for sale, the judge permitted the witness to answer that she did not obtain an order, nor did she advertise the sale. The correctness of this ruling, therefore, depends upon the question as to whether or not the executrix, under the will of the testator, had the power to sell the real and personal property of the estate at private sale.
1. The Code § 113-1717 provides: The 'requisitions' referred to in this section have reference to advertising and public sale. Anderson v. Holland, 83 Ga. 330, 9 S.E. 670; Chattanooga Iron & Coal Corp. v. Shaw, 157 Ga. 869, 881, 122 S.E. 597. Code, § 37-607 provides:
Sales by executors, if not otherwise provided by the will, must be at public outcry to the highest bidder. The purchaser is bound to see that the executor is apparently proceeding under the forms prescribed by law. Neal v. Patten, 40 Ga. 363(1). If power be given in a will to sell land or personal property, this only dispenses with the necessity of an order of the court of ordinary, and if the will does not expressly or impliedly provide for a private sale, such sales must be public; otherwise such sales are void. Worthy v. Johnson, 10 Ga. 358(2), 54 Am.Dec. 393; Moore v. Turner, 148 Ga. 77(2a), 95 S.E. 965. We therefore turn to the will to ascertain whether or not the testator expressly or impliedly authorized the executrix to sell the property of the estate at private sale. Under the view that we take of this matter, it is not necessary to determine whether or not the will granted the executrix power to sell the property of the estate without obtaining an order of court.
Item 6 of the will, after appointing Joannah Bonner executrix, provided: 'I desire that such executrix...
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