Bowen v. Holland, 11044.

• Decision Date: 17 April 1936
• Docket Number: No. 11044.,11044.
• Citation: 182 Ga. 430,185 S.E. 720
• Parties: BOWEN et al. v. HOLLAND et al.
• Court: Georgia Supreme Court

182 Ga. 430

185 S.E. 720

BOWEN et al.

v.HOLLAND et al.

No. 11044.

Supreme Court of Georgia.

April 17, 1936.

Rehearing Denied May 15, 1936.

Syllabus by Editorial Staff.

Error from Superior Court, Tattnall County; J. T. Grice, Judge.

Suit by Mrs. W. W. Bowen against Mrs. A. H. Holland, administratrix of the estate of A. H. Holland, deceased, and others, wherein others were made parties plaintiff on the administratrix' request. Judgment for defendants, a motion for new trial was overruled, and plaintiffs bring error. Reversed.

Mrs. W. W. Bowen, daughter of A. H. Holland, brought a petition against Mrs. A. H. Holland, National Surety Corporation of New York, and Claxton National Bank, alleging in substance as follows: Mrs. Holland was appointed administratrix of the estate of A. H. Holland on September 13, 1933. National Surety Corporation is surety on her bond. She has had the whole of deceased's estate appraised according to law. In making the appraisement and inventory, she pointed out the assets of the estate of the deceased. The estate was appraised at $4,022.83, because the appraisers valued $4,600 deposited in the Claxton Bank by A. H. Holland and the interest thereon at only one-half its value, whereas the deposit was and is in fact worth the full amount thereof plus interest. Mrs. Holland had set apart to her a year's support valued at $1,098.48. No debts are owed by the estate, and more than twelve months have expired since the appointment of the administratrix. The estate consists almost entirely of cash, and there is no reason why it should not be distributed according to law. Mrs. Holland is claiming said $4,600 and the interest thereon as her property individually, and is threatening to withdraw said sum from the bank. The only interest she has in said sum is as an heir at law of the deceased. She is insolvent, and the court of ordinary has no jurisdiction to try the title to the fund. The plaintiff prays that the court enjoin Mrs. Holland from withdrawing said fund; that the bank be enjoined from paying the money to Mrs. Holland individually or as administratrix until further order of the court; and that petitioner be given judgment for her pro rata share of said sum as an heir of the deceased, less the expenses of administration.

Mrs. Holland, as administratrix, answered, alleging that the item included in the return of the appraisers, to wit, "Bank deposit, $4,600--$2,300, " and "Interest on bank deposit, $222.97--$111.50, " should not be included in the return as assets of the estate of the deceased, for the reason that said funds were deposited in said bank on a time certificate by the deceased, who at the time of making said deposit directed the cashier of the bank to fix the deposit so that it would be payable to Mrs. Holland in the event deceased should die before his wife, or to him in the event she should die before he did; that the intention of deceased was to create a right of survivorship in himself and his wife in regard to said deposit; that the certificate of deposit was made to read in part, "A. H. Holland has deposited in this bank $4,600, payable to the order of himself or his wife, (Mrs. A. H. Holland), " which certificate was accepted by the deceased believing that thelegal effect of the certificate was in accordance with his expressed intention; that the certificate should have been made payable to A. H. Holland and his wife, Mrs. A. H. Holland, and to either or the survivor; that by mutual mistake of law on the part of the deceased, the bank, and Mrs. Holland, who was present when all the above transpired, the certificate was not made payable to both or the survivor; all of said parties believing that the certificate as prepared did have the legal effect of carrying out the intention of the deceased. The defendant prayed that the certificate be so reformed as to read payable to the deceased and wife and to either or the survivor. She further answered that the other assets of the estate were notes which were practically worthless. The bank answered, admitting the deposit, and praying for direction of the court. The surety company answered that it was neither a proper nor a necessary party, and should be dismissed as a party for the reason that there had been no breach of the bond of the administratrix and that it was not indebted to the petitioner in any sum. On motion of the administratrix the other heirs of deceased were made parties plaintiff.

On the trial evidence was introduced in support of the petition and the answers. The certificate of deposit, the petition and appointment of Mrs. Holland as administratrix of the estate, the appointment of the appraisers, the return of inventory and appraisal setting out the deposit as part of the assets of the estate, and the oath of Mrs. Holland as to the correctness of the inventory and appraisal were introduced in evidence. W. W. Bow-en, husband of petitioner, testified that about two years before the death of deceased he made statements as to what he wanted done with his money; that about three weeks before he died he told petitioner that he had been saving his money for his children for years, and now it was in the closed bank (the bank was closed on March 3, 1933, upon proclamation of the President of the United States); and that he wanted to divide it among his children while they were living. After the bank was closed, he went to the bank and said he was going to see what it was doing; that if it never opened it would hurt him, that he did not need the money, but his children needed it. Mrs. Holland was there and heard...