Darling v. Jones, 34743

• Decision Date: 01 October 1953
• Docket Number: No. 1,No. 34743,34743,1
• Citation: 78 S.E.2d 94,88 Ga.App. 812
• Parties: DARLING et al. v. JONES et al
• Court: Georgia Court of Appeals

Page 94

78 S.E.2d 94

88 Ga.App. 812

DARLING et al. v. JONES et al.

No. 34743.

Court of Appeals of Georgia, Division No. 1.

Oct. 1, 1953.

Syllabus by the Court.

1. The petition, seeking declaratory relief to terminate a controversy, between the holders of an unmatured note and the executors of the estate of the deceased maker of the note, concerning the construction and validity of the note and the petitioners' status as creditors of the deceased maker's estate, set out a cause of action for a declaratory judgment; and the existence of another remedy, such as a suit at law to recover the unpaid interest due upon the note, does not preclude the petitioners from obtaining the milder declaratory relief.

2. The residuary legatee of the maker's estate, having an interest in the alleged controversy, was properly made a party defendant.

3. The court did not err in denying the motion to dismiss the petition nor in overruling the demurrers to the petition.

Anna Lou Jones, individually, and Helen J. Kinnie, as trustee of Robert H. Kinnie and Carl Kinnie, filed a petition for a declaratory judgment in the Superior Court of Richmond County, naming as defendants Henry B. Darling, Jr., individually, and in his representive capacity as an executor under the will of Henry B. Darling, and Georgia Railroad Bank & Trust Company, in its representative capacity as an executor under the will of Henry B. Darling. It was alleged that the petitioners are the residuary legatees under the will of Mary E. Jones, deceased, and as such are the holders and assignees of a certain promissory note, endorsed without recourse and distributed to them by Georgia Railroad Bank & Trust Company as executor under the will of Mary E. Jones. The defendants are the duly appointed, qualified, and acting executors under the will of Henry, B. Darling, and the defendant, Henry B. Darling, Jr., is the residuary legatee under the will of Henry B. Darling. There is an actual controversy between the petitioners and the defendants arising out of the following stated facts: Mary E. Jones had in her possession United States Treasury bonds of the face value of $10,500, registered as payable to 'Henry B. Darling and Mary E. Jones, or the survivor.' Henry B. Darling needed $10,000 to invest in a business and obtained the consent of Mary E. Jones to sell $10,000 worth of these bonds, agreeing to execute in lieu thereof the note in question. Mary E. Jones, in consideration of the agreement to execute the note, delivered bonds having a face value of $10,000 to Henry B. Darling, who sold them and retained the proceeds for his own use. On May 1, 1949, Henry B. Darling executed and delivered to Mary E. Jones his note for $10,000 on the following terms: '$10,000.00. Augusta, Ga., May 1st, 1949. Five years after date the undersigned promises to pay to the other of Mary E. Jones with interest from date at 1 per cent interest payable semi-annually. In case of her death or marriage the note becomes cancelled and the obligation of the maker ceases. This note subject to renewal at end of five years without payment on principal. Ten Thousand Dollars with interest from date at 1% per annum, at the banking house of the Georgia Railroad Bank & Trust Co., for value received.' On April 3, 1950, Henry B. Darling died, and by his will, duly probated, he devised and bequeathed the residue of his estate, after payment of debts, to his son, Henry B. Darling, Jr. On January 5, 1951, Mary E. Jones died, unmarried, and by her will duly probated bequeathed the residue of her estate to the petitioners, and named Georgia Railroad Bank & Trust Company as executor. The bank, as executor under the will of Mary E. Jones, notified the defendant coexecutor of the existence of the note and made demand for payment of interest past due and unpaid. Henry B. Darling, Jr. coexecutor, repudiated the note by the following notice to the bank: 'I have absolutely no intention of paying such a sum voluntarily. It is my belief that a contract in writing is executed according to its specific terms.' The defendant bank, as co-executor of the will of Henry B. Darling, acquiesced in the decision of Henry B. Darling, jr., not to pay the note or any interest thereon. The bank then made a partial distribution of the estate of Mary E. Jones and endorsed the note to the petitioners, who made demand upon the defendants for payment of the note. The defendants failed to respond to the demand. No interest has ever been paid upon the note, and the four seminnual interest payments of $50 each up to May 1, 1951, are due. The petitioners, by reason of these facts, are creditors of the estate of Henry B. Darling, and there is danger that his estate will be closed, its assets distributed, and the defendants dismissed as executors before the maturity of the note without provision for its payment.

The petitioners contend that the maker's obligation on the note should cease only in case of the death or remarriage of Mary E. Jones before the death of Henry B. Darling and that the note is a binding obligation of the estate of the defendants' testator because Mary E. Jones survived Henry B. Darling and was never married. The defendants contend that the note was canceled and the obligation ceased upon the death of Mary E. Jones, the payee, subsequent to the death of Henry B. Darling, the marker, and they intend to close the estate of Henry B. Darling without providing for the payment of the note. To facilitate the closing of both estates, the petitioners offer to waive payment of future interest in return for payment of the principal amount with interest to date and to surrender said note. A declaration of the petitioners'...