Cutliff v. Boyd

• Decision Date: 10 June 1884
• Citation: 72 Ga. 302
• Parties: CUTLIFF v. BOYD et al., executors.
• Court: Georgia Supreme Court

72 Ga. 302

CUTLIFF v. BOYD et al., executors.

Supreme Court of Georgia.

June 10, 1884

February Term, 1884.

[This case was argued at the last term, and the decision reserved.]

1. Generally, where exceptions of fact are filed to an auditor's report, the report is prima facie evidence of the truth, and the plaintiff must overcome it but where his report on the facts of a case is made without hearing both sides thereon, if it be legal to hear both, then such report is not prima facie evidence of truth on the issue as to which one side was thus excluded. Therefore where the court sustained an exception to an auditor's report, on the ground that one of the parties was not permitted to testify before the auditor as to a particular issue, but the other party was permitted so to testify, it was error thereafter to charge that the auditor's report as to such issue was prima facie true.

2. A verdict in these terms, " We, the jury, sustain the auditor in regard to exceptions 7, 8, 9, 11 and 14," was a substantial compliance with the requirements of law that the jury shall find on the exceptions seriatim.

3. The verdict is supported by evidence, and would stand but for the error in the charge.

4. There was no error in charging that if notes were due prior to June, 1865, and were not sued on by January 1, 1870, they would be barred, unless there were some legal reason why the statute was suspended; nor as to the six year's statute of limitations.

5. There was no error in charging that, if the two distributees of an estate agreed that the will should be set aside, and that they would divide the estate equally, and that certain notes due by each of them were not to constitute a part of the estate, one of the distributees being the administrator in a subsequent suit between them, such an agreement would be binding, and the other party could not claim that the notes were a part of the estate; but that, if the converse of the proposition were true, and they were to make such a division of the estate, and the notes of the respective parties were to be included, then it would be the duty of the jury to carry out the agreement.

6. There was no error in charging to the effect that the administrator of an estate could not of his own motion or volition, without any order of court, or without any accounting or settlement with the other distributee thereof or without any agreement on the part of such distributee take his distributive share and apply it to certain notes given by him.

7. Where a mother advanced money to her son and took notes therefor, prima facie such notes represented an indebtedness, and not an advancement, but this presumption was subject to be rebutted.

8. The charge as a whole was sound, just and impartial.

Practice in Superior Court. Auditors. Verdict. Statute of Limitations. Contracts. Administrators and Executors. Charge of Court. Before Judge STEWART. Fulton Superior Court. April Term, 1883

J. M. Cutliff brought complaint against Isaac S. Boyd and his wife, Mary L. Boyd, formerly Mrs. Holliday, widow of J. R. Holliday, as executor and executrix of said J. R. Holliday, deceased, on two promissory notes; one dated May 25, 1868, due one day after date, by J. R. Holliday, to plaintiff or bearer, for $237.63; the other dated July 16, 1868, due one day after date, by J. R. Holliday, to plaintiff or bearer, for $75.00. Defendants filed pleas, making, in brief, the following points: The general issue; that Holliday was imbecile and incapable of contracting; that he was almost entirely blind and dependent upon others for information as to the contents of any writing, and was not in the habit of making contracts, except under the supervision of his wife and brother (plaintiff, who was his half brother); that if he signed the notes sued on at all, he did not understand their contents, and his signature was obtained by plaintiff by reason of the confidential relations between them; that plaintiff was in the habit of endeavoring to get Holliday to leave him his entire estate, and pressed this purpose upon him in various ways, securing promises from Holliday when the latter was suffering from disease and incapable of understanding his rights and resisting plaintiff's influence, and of such promises he had no recollection whatever upon being partially restored; that he was never more than partially restored in the years 1868 and 1869, and died in the latter year; that, at the time these notes were given, Holliday had no need to borrow money or renew debt, he having ample cash means, and being in the habit of lending money through his agents; that plaintiff was one of these agents, and received on account of Holliday a considerable sum of money, for which an accounting was prayed; that plaintiff kept the existence of the notes sued on to himself until the death of Holliday, realizing that he was largely indebted to Holliday for sums received by him as administrator of the estate of one Lucinda Mabry, the mother of both plaintiff and Holliday; that in 1867 Mrs. Mabry died, leaving a large estate in real and personal property and in cash; that plaintiff administered on the estate, and without legal sales, disposed of the estates and property, and appropriated them to his own use, that plaintiff and Holliday were the sole heirs at law of Mrs. Mabry, who died without debts; that the amount in the hands of plaintiff due to defendants from the estate is about $6,000.00; that plaintiff would not be able to respond for this sum in an action therefor, and that the only chance of realizing upon the same is by an accounting in this action.

Plaintiff's attorneys acknowledged service on this plea, and consented that an accounting in regard to the estate of Mrs. Mabry be had in this suit, on the principles and practice of equity. Plaintiff filed an answer to the equitable plea of defendants, denying substantially all of the equitable rights and charges set out therein, and especially denying all fraudulent or improper means of obtaining the notes in suit from Holliday, or that the latter was unable to transact business, or imbecile, or that plaintiff imposed upon him, or that, as the agent of Holliday, he had received or misappropriated any funds or property of the latter, or that he had kept the existence of the notes in suit a secret; and he alleged that the larger note was given in renewal of a note from Holliday to him, made in 1858, for the purchase of a half interest in a plantation and stock thereon, and that the small note was given for a balance in money due him by Holliday. In regard to the Mabry estate, plaintiff alleged that he administered on it, sold the property according to the law governing administrator's sales, and that, after selling it, he appropriated the proceeds to his own use, in order that he might thus receive an equal share in said estate with Holliday, inasmuch as he held, as administrator, notes of Holliday sufficient in amount to overbalance the sum received and appropriated by plaintiff. These notes were made payable to plaintiff as administrator of J. Mabry, the husband of Mrs. Lucinda Mabry, his estate having passed to the latter, and these notes constituted part of the estate of Mrs. Mabry at her death.

The case was referred to an auditor. He found that, on an accounting between plaintiff and the estate of Mrs. Mabry, there was due by the former to the latter, for moneys received and undistributed, $12,308.69, on September 23, 1881. He also reported that the administrator was not entitled to any credit on account of the notes of Holliday, because they ceased to be obligations of the latter, by reason of an agreement entered into between the two, to the effect that these notes should be destroyed, that the will which Mrs. Mabry had made should not be set up, and that Holliday and plaintiff should each take one-half of the estate, instead of Holliday's taking two-thirds and plaintiff one-third, as would have been the case if the will could have been established. He also reported that these notes were barred by the act of 1869, the debts having been contracted and become due prior to June, 1865, and not having been set up until 1877 (giving the answer the effect of a suit). He further reported that no evidence as to maladministration on the part of plaintiff had been introduced, and that there was no individual indebtedness from plaintiff to Holliday. Plaintiff filed fourteen exceptions to the report, only six of which it is necessary to set out. They are as follows:

(7.) " Because the auditor erred in finding that said notes of J. R. Holliday, the property of Lucinda Mabry at her death, and fully set forth in plaintiff's answer, are not chargeable to Holliday's estate, because barred by the act of 1869.— Plaintiff insists that, having these notes in his possession as the property of said estate, and having collected the assets of said estate before the bar of the statute applied, he had the right to appropriate the share of said Holliday in said estate to the payment of his, the said Holliday's, notes."

(8.) " Because the auditor refused to allow plaintiff a credit for the note of J. R. Holliday and J. M. Cutliff, security, payable to Dennis Paschal, for $150.00, due December 11, 1859.— Plaintiff insists that, at the time he collected the assets of Lucinda Mabry's estate, said note was a valid debt against said Holliday's estate, and he had the legal right to charge it against the latter estate in his returns to the court of ordinary of Dougherty county."

(9.) " Because the auditor finds that plaintiff, as administrator of Lucinda Mabry, is indebted in the sum of $12,308.69, or in one-half of that sum.— Plaintiff says that the auditor should have allowed him a credit for each and all of the Holliday...