Brown v. Brown, 18103
| Decision Date | 24 February 1953 |
| Docket Number | No. 18103,18103 |
| Citation | 209 Ga. 620,75 S.E.2d 13 |
| Parties | BROWN v. BROWN et al. |
| Court | Georgia Supreme Court |
The petition as amended, filed July 3, 1952, alleges substantially that J. Fred Brown, who was never married and left no children surviving him, and whose father was dead, died intestate on May 24, 1941, and left surviving him seven heirs at law, consisting of his mother and brothers and sisters, the mother and one sister having since died, the sister leaving as her only heirs at law three children who are named as plaintiffs along with other brothers and sisters, who bring this petition against Joe M. Brown, one of the brothers of the deceased.
It is alleged that J. Fred Brown and the defendant, Joe M. Brown, were engaged in certain designated businesses, each having an undivided one-half interest, and that they were partners with one F. W. Shropshire in another business known as 'Brown-Shropshire Warehouse Company,' J. Fred Brown owning an undivided one-third interest therein; that both J. Fred Brown and Joe M. Brown were actively engaged in managing and operating the said partnerships, giving all of their time thereto, none of the plaintiffs having any interest therein; that on the Sunday following the death of J. Fred Brown, the defendant Joe M. Brown asked all of the brothers and sisters to meet with him at his mother's home, and all were then present; that at the meeting the defendant stated that he and his deceased brother had been engaged in businesses together, and each had prepared a will for the benefit of the other, but neither of said wills had ever been executed, and that the estate of his brother would have to be divided among the heirs, but it would be to every one's best interest not to have a forced sale, and stated that, if agreeable, he would take charge of and run said businesses and look after the said estate; that there were some outstanding obligations, but that all of these obligations could be liquidated within seven years if he was given that period of time; and that in the meantime he would see that any emergencies such as sickness or death could and would be taken care of by him; that, having complete confidence in the honesty, integrity, and ability of their son and brother, the defendant, they agreed to the proposition and that he should assume control of the estate and operate the said businesses for said period of time, and that there would be no liquidation of the estate until after said period of time had expired; that none of the petitioners understood that there was to be any administration on the estate, but understood that the defendant was to take possession and operate the same under the agreement entered into at said meeting, and as a result thereof they dismissed the same from their minds and expected their brother to carry out said agreement to look after said estate and to protect their interests therein.
The petition further alleges: that, notwithstanding this agreement, the defendant almost immediately, and on June 30, 1941 filed a petition in the court of ordinary praying for the appointment of a named person as temporary administrator of the estate, and that such person was appointed; that thereafter, and about August 4, 1941, the defendant filed his petition in the Court of Ordinary of Floyd County praying that an administrator be appointed upon the estate of J. Fred Brown, and on his representation that the majority in interest of said estate had agreed to the appointment--which representation was false, as none of the petitioners had any knowledge that any such petition was pending, and none of them had agreed to the appointment, all of which was a part of the scheme and device of the defendant to secure all of the property of J. Fred Brown to the exclusion of the rights of the plaintiffs--a named person was appointed administrator of the estate of J. Fred Brown, and the defendant signed the bond of the administrator as surety thereon; that the administrator thereafter filed an inventory and appraisement of the estate showing both real and personal property, copy of which was attached to the petition as Exhibit 'A', and it is alleged that all of the property therein listed was a part of the estate of J. Fred Brown and belonged to him at the time of his death, as well as other property.
It is further alleged: that thereafter, at a purported sale of the lands and property described in the inventory, the defendant, Joe M. Brown, purchased the same from the administrator for a purported price of $21,134.52; but that this sum was never paid by the defendant to the administrator, and the only sum ever paid by the defendant was the cost of administration, amounting to $2171.93; and that none of the plaintiffs ever received any part of their distributive share in the estate of the deceased, because the defendant represented to the administrator that all of the interests of the plaintiffs had been assigned and belonged to him, all of which was untrue.
The petitioners allege that they never had any notice or knowledge of the administration on the estate, or of any of the acts and doings of the administrator or of the defendant with respect thereto, until about six months prior to the filing of the present petition; that neither the administrator nor the defendant ever informed the plaintiffs of any of their acts and doings with reference to the said estate.
The petition alleges: that the acts of the defendant in acquiring the properties belonging to the estate of their deceased brother constitute a fraud; that, on account of said fraudulent acts, he obtained title to the property described in the inventory which rightfully belongs to the plaintiffs, with the exception of a one-sixth interest therein, belonging to the defendant as an heir at law of his deceased brother and mother; that, on account thereof, a trust was implied, and the defendant is holding the same, with the exception of said interest, in trust for the plaintiffs; that they are informed and believe that all of the real estate belonging to the estate of J. Fred Brown is still owned and in the possession of the defendant, but, should it appear that he has sold any part thereof, that he be required to account to the plaintiffs therefor, together with interest thereon at the rate of seven percent; that they are informed and believe that the partnership business known as 'County Line Liquor Store' has been liquidated, and that the defendant received therefor a sum in excess of what is shown as the purchase price at the purported administrator's sale; and that the business known as 'Brown Transfer & Storage Company,' together with its franchises, certificates of right to do business, and physical properties have been sold by the defendant at and for approximately $100,000; and that the defendant has continued the other partnership business known as 'Brown-Shropshire Warehouse Company,' from which large sums have been earned and received by the defendant; that all sums which were expended by the defendant in acquiring possession of the property and which were a legal claim against said estate have been fully paid from rents, issues, and profits of said property; but that, if they have not been paid, the petitioners desire to do equity, and that in an accounting the defendant should receive credit for any and all amounts which were expended by him and which are legally due to him.
The petition prayed for process; that the court decree that the defendant is and was holding said property described in Exhibit 'A' in trust for their benefit, and that they are and were the owners of interests therein as set forth in the petition, and any such property as may now be in possession and control of the defendant coming from the estate of J. Fred Brown; for an accounting between the parties, and for a judgment against the defendant for such sums as might be found to be due them and each of them; that the defendant be temporarily and permanently restrained and enjoined from selling, transferring, or in any way changing the status and...
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