Chapalas v. Papachristos

• Court: Georgia Supreme Court
• Writing for the Court: BELL, Justice.
• Citation: Chapalas v. Papachristos, 185 Ga. 544, 195 S.E. 737 (Ga. 1937)
• Decision Date: 19 February 1937
• Docket Number: 12119.
• Parties: CHAPALAS et al. v. PAPACHRISTOS.

195 S.E. 737

185 Ga. 544

CHAPALAS et al. v. PAPACHRISTOS.

No. 12119.

Supreme Court of Georgia

February 19, 1937

Error from Superior Court, Coweta County; L. B. Wyatt, Judge.

Petition by F. S. Chapalas and others, residuary legatees under the will of Arthur V. Chapalas, deceased, against C. N Papachristos, executor, to require an accounting and settlement of the executor. To review a judgment sustaining a general demurrer and dismissing the petition, petitioners appeal.

Reversed.

Syllabus by the Court.

A will provided that after settling a specific legacy and paying debts the remainder of the estate should be divided amoung four named relatives. Item 5, after naming an executor, was as follows: 'I relieve him from making any inventory of my property or appraisement, or from giving any bond, and he is required only by this will to probate it and see that its terms are carried out, and he is further relieved from making any returns of his acts and doings to any court whatever.' Held, that this item of the will did not render the executor unanswerable in court in a proceeding by legatees for an accounting and settlement, nor prevent the court of ordinary from entertaining such a proceeding. The petition filed by legatees in that court praying for such relief, was sufficient to state a cause of action, and the superior court erred, on appeal, in sustaining the general demurrer and dismissing the petition.

Arthur V. Chapalas died a resident of Coweta county. He left a will which was duly probated. Item 3 made a special bequest. Item 4 devised the remainder of his property, after paying debts to Fany S. Chapalas and three other named relatives. Item 5 was as follows: 'I hereby make and appoint Constantinos No. Papachristos, of Albany, Ga., as executor of this will and I relieve him from making any inventory of my property or appraisement, or from giving any bond, and he is required only by this will to probate it and see that its terms are carried out, and he is further relieved from making any returns of his acts and doings to any court whatever.' In December, 1933, letters testamentary were issued to the person named as executor. In April, 1936, Fany S. Chapalas and the other persons named as legatees in item 4 of the will filed in the court of ordinary of Coweta county a petition in which they made the following allegations:

'That at the December term, 1933, Coweta Court of Ordinary the last will and testament of Arthur V. Chapalas was probated in solemn form, a copy of this will is hereto attached as Exhibit 'A' and made a part of this paragraph. That on December 11, 1933, letters testamentary were issued to Constantinos N. Papachristos, the nominated executor, and said executor took charge and possession of such estate, which was of the value of eleven thousand dollars ($11,000.00) or other such large sum. Petitioners are the legatees designated in item four of said will, and are entitled to receive from such executor so appointed by this court all such estate after payment of expenses, except for certain special bequests set out in such will. More than one year has expired from grant of said letters of administration to Constantinos N. Papachristos, and said executor had paid all just debts of said estate and delivered all property specially bequeathed therein, and funds and property of this estate now in hands of such executor or which should be in his hands should be paid over to and is the property of petitioners, and there is no just or legal reason why said executor should not account to and settle with petitioners as legatees and devisees under such will. Petitioners show that said Constantinos N. Papachristos, as executor, fails and refuses to make a fair, honest, or legal settlement of his account as such executor, in that he has wasted a large part of the assets of such estate, has paid or pretends to have paid large expenses, costs and claims against such estate, which were not and are not legal charges against said estate. That he fraudulently represented and pretended to your petitioners that under said item four of such will that they were and are due only fourteen hundred fifty-six dollars ($1456.00), when as a matter of fact petitioners are due from such estate which came into the hands of such executor ten thousand dollars ($10,000.00) or other such large sum. Petitioners show that on or about the 1st day of January, 1935, said executor, representing that fourteen hundred fifty-six dollars ($1456.00) was all of such estate payable to them, paid such sum. Since such payment was so made and received, your petitioners show that they have discovered that a large number of items claimed to have been paid were not paid, and if paid were not just claims against such estate; that said executor has given away a large part of the assets of such estate, and has purposely, falsely, and fraudulently concealed its assets. That said Constantinos N. Papachristos has not been discharged as executor, and has made no returns to the court of ordinary, and his accounts have never been approved or allowed. So in order to ascertain the same your petitioners pray that a settlement of Constantinos N. Papachristos' account as executor may be had at the June term, 1936, of the court of ordinary for Coweta County, to be held on the 1st day of June, 1936; and that citation issue to Constantinos N. Papachristos, requiring him to be then and there present and make a full settlement of the estate of Arthur V. Chapalas in his the hands of Constantinos N. Papachristos his executor.'

On this petition a citation was issued and served. The executor appeared and filed, among other pleadings, a general demurrer and an answer. The court of ordinary rendered a judgment in favor of the plaintiffs, from which the executor appealed. The judge of the superior court sustained the general demurrer as filed in the court of ordinary, and the plaintiffs excepted. The grounds of demurrer were: (1) That the petition shows 'no cause of action against this defendant, and there is no cause of action laid out therein,' and (2) that upon the allegations made 'the plaintiffs are not entitled to the relief prayed for.' The bill of exceptions recites that the court sustained the general demurrer on the ground that under the terms of the will the executor could not be required to account to the court of ordinary.

Walter D. Sanders and Stanford Arnold, both of Newnan, for plaintiffs in error.

Adie N. Durden, of Albany, and Ellis G. Arnall, of Newnan, for defendant in error.

BELL Justice.

Residuary legatees filed in the court of ordinary an application to require an accounting and settlement of the executor. The case was appealed to the superior court, where the petition was dismissed on general demurrer, and the plaintiffs excepted. It seems from the briefs and a recital in the bill of exceptions that the judge was of the opinion that under the terms of the will the executor was relieved from any accounting or settlement in the court of ordinary. Item 5 of the will was as follows: 'I hereby make and appoint Constantinos N. Papachristos of Albany, Ga., as executor of this will, and I relieve him from making any inventory of my property or appraisement, or from giving any bond, and he is required only by this will to probate it and see that its items are carried out;...