Burgamy v. Holton
| Decision Date | 16 December 1927 |
| Docket Number | 6132. |
| Citation | 141 S.E. 42,165 Ga. 384 |
| Parties | BURGAMY v. HOLTON. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
A suit against defendant as the widow and sole heir at law of her deceased husband, for specific performance of a contract by which the deceased agreed to adopt the plaintiff as his child, make her his heir, and devise to her one-third of his estate, was not barred by the judgment of the court of ordinary discharging the administrator of the decedent after he had taken possession of the estate of his intestate, and after paying the debts of the intestate and the expenses of administration, had turned over to the widow, as such heir the remainder of the estate. The court of ordinary was without jurisdiction to pass upon the claim of the plaintiff or to render any judgment which would affect the same.
It was not necessary to have an administrator appointed for the estate and made a party defendant to enable the plaintiff to prosecute this action. The action can proceed against the sole heir at law, who has possession of the entire estate the administrator having been discharged, and there being no debts.
An "accord and satisfaction arises" where parties, by a subsequent agreement, have satisfied the former one, and the latter agreement has been executed. The execution of a new agreement may itself amount to a satisfaction, where it is so expressly agreed by the parties; and without such agreement, if the new promise is founded on a new consideration, in which case the taking of the new consideration amounts to the satisfaction of the former contract.
(a) The accord and satisfaction must be of some advantage, legal or equitable, to the creditor, or it will not have the effect of barring him from his legal rights. The acknowledgment of a disputed title or the securing of a doubtful claim is such an advantage.
(b) Generally, an essential element to sustain an accord and satisfaction of an entire debt or disputed claim by the giving of a less sum of money than that claimed, and nothing more, is a bona fide dispute or controversy; but this rule does not apply where the damages are unliquidated.
(c) A dispute or controversy is not an essential element of some forms of accord and satisfaction, as an accord and satisfaction of a liquidated claim by the giving and acceptance of a smaller sum and some additional consideration, such as new security, payment of the debt before due, payment by a third person, or where property or personal services are accepted from an insolvent debtor in satisfaction.
(d) If a creditor agrees to accept a less amount than his claim in property, and does accept it in discharge of such claim, the defendant may plead it by way of accord and satisfaction; or, if such facts appear from the petition of the plaintiff, he can take advantage of it by demurrer.
(e) A debtor is under no legal obligation to deliver something other than money, and the delivery of property may be a legal consideration for a contract of discharge by a creditor, as well as any other promise he might make; and this rule applies irrespective of the intrinsic value of the property.
[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Accord and Satisfaction.]
Where the widow and sole heir at law refused to recognize the claim of the plaintiff to one-third of the estate, but did turn over to the plaintiff certain property in full settlement and satisfaction of the unliquidated claim of the plaintiff in the estate, which she accepted and keeps, the plaintiff cannot maintain this action to recover a balance which she claims to be due her upon her claim, without having returned to the defendant such property.
(a) Where property was delivered by the defendant to plaintiff in full settlement of her claim in the estate, this was a delivery upon the condition that the plaintiff should accept it as such; and, where the plaintiff accepted and keeps the property so delivered to her, she cannot keep the property and repudiate the condition.
(b) The court erred in not sustaining the demurrer to the petition upon the principle just announced.
Error from Superior Court, Washington County; R. N. Hardeman, Judge.
Petition by Docia Padgett Holton against Susie Burgamy. Demurrers to petition were overruled, and defendant brings error. Reversed.
In suit against deceased's widow for specific performance of deceased's contract to devise plaintiff part of estate, administrator need not be appointed and made party defendant.
Docia Padgett Holton, on March 23, 1926, filed her petition against Susie Burgamy, and made these allegations:
(1) She was formerly Docia Padgett, but now Holton.
(2) In 1888 she was placed in the orphans' home of the South Georgia Methodist Conference, and remained in said home until 1900, when J. R. Burgamy came to said home, seeking a child to be taken into his home (he and his wife having no child of their own) for company and companionship, with the intent and purpose of adopting her as his own daughter and child.
(3) When Burgamy agreed to take her, he entered into an agreement and contract with the superintendent of said home, who had a right to make a contract in her behalf, to the effect that Burgamy would take her into his home, support and school her, raise her under Christian environment, and adopt her as an heir at law, with all the rights and privileges of a child of his blood, if she should prove satisfactory and pleasing. By virtue of said agreement, she was taken into the home and family of Burgamy as a member thereof in 1900, and she remained there until the year 1904, when she, with the approval of Burgamy, married J. E. Holton. During the years 1900 to 1904, inclusive, during which time she remained in his home, Burgamy, in compliance with his agreement, provided medical attention for her when necessary, surrounded her with Christian environment, learned to love her, and bestowed upon her all the kindness and care that any parent would have given to his own child. She loved Burgamy, and soon began to look upon him as a father, and responded to his care and attention by making him a dutiful and loving child. She became in fact an actual member of his family, devoting her life to his and his wife's care.
(8) After being in his home for a short time, and being pleased with his treatment and kindness, she induced Burgamy to bring to his home her sister, Della Padgett, to share her happiness, upon the same terms and conditions as were made in her behalf with said superintendent of said home. Della Padgett came to his home on January 12, 1901, and she and her sister looked after his home, and dutifully attended to all of the wants of the home. They performed all the household duties, milked the cows, and worked the garden.
(10) She and her sister frequently talked with Burgamy concerning their status in his household, and frequently asked him if he regretted having them in his home, if they had given him satisfaction and happiness, and if their conduct and help was such as he expected them to render, and if he loved them.
(11) In these conversations at various times during said years, Burgamy expressed his entire satisfaction with their conduct and diligence. He said he loved them just as well as he could love a daughter of his own, and that they had made him happy, that no natural children could have ever been more loving and dutiful, and he said he expected them to inherit of what he left, and that they would be heirs of his estate. He addressed them as his daughters or children. He publicly declared that he expected to adopt petitioner as his child, so that she would be a legal heir to his estate, After she married, there was never any change in his conduct towards her, and he continued to look after her and her family and their welfare and that of her children. Whether Burgamy took legal steps to adopt her as his legal heir at law she is not advised, but she knows that this was his expressed intent and purpose. By reason of said promises, and of his statements and promises made to her, her husband, and others, she was led to believe that she had been legally adopted by him. She acted upon such belief. His conduct and statements amounted in law to a legal and virtual adoption; and, having acknowledged her as his adopted child, and having so treated her, this was sufficient without more to make her his adopted child with all the rights of a natural one. Although intending to carry out the agreement and contract which he made with her by making provision for her and her sister in his will, he failed to make a will, or, if he made one, the same cannot be found and probated. He did not convey to her any money or property of value during his lifetime, except such as was necessary for her bare sustenance and support. She rested securely in the belief that, having adopted her as his child, he would make provision for her in his will, and that at his death she would inherit, as his recognized, adopted child, one-third of his estate. Burgamy died April 22, 1924. He left no child by blood and no children by adoption, except plaintiff and her sister. Susie Burgamy, his widow, is now claiming to be his sole heir at law; and, if plaintiff and her sister are not entitled to be considered as his adopted children, and as such entitled to one-third interest each in his estate, his widow will be entitled to inherit his entire estate.
(16) At the June term, 1924, of the court of ordinary, Alfred R Burgamy was appointed administrator of the estate of J. R. Burgamy. The estate was duly appraised, and was of the value of $100,000, or other large sum. The administrator administered the estate, paid all of the debts, and delivered to the widow the entire estate,...
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