Darnell v. Tate
| Citation | 206 Ga. 576,58 S.E.2d 160 |
| Decision Date | 15 February 1950 |
| Docket Number | No. 16957,16957 |
| Parties | DARNELL v. TATE et al. |
| Court | Supreme Court of Georgia |
Syllabus by the Court.
1. A petition seeking a declaratory judgment, which does not set forth allegations of fact showing an actual controversy between the parties, is subject to demurrer.
2. On such a petition, where a declaration is sought as to matters or claims pending between the parties in another court of competent jurisdiction, a declaratory judgment will be denied where such declaration will be in nature and effect an advisory opinion to such other court.
3. The trial judge, after indicating his intention to sustain the general demurrers and dismiss the petition, did not abuse his discretion in refusing the request of counsel for the plaintiff to be allowed time to amend, where it appears that the matters which the proposed amendment would contain would not cure the fatal deficiency in the original petition.
This case is before us on a writ of error from Pickens Superior Court assigning error on the sustaining of the general demurrers of certain parties defendant to the plaintiff's petition as amended.
Luke J. Darnell filed his petition in equity against L. E. Tate, individually and as sole executor of the will of S. C. Tate; the nature and character of the petition being set out in paragraph 44: 'Your petitioner is a legatee and cestui que trust under the will of S. C. Tate, and it is necessary for this court to make a declaration of the rights and legal relationships in respect thereto, to direct the nominated fiduciary, to-wit, L. E. Tate, from proceeding further in the Court of Ordinary of Pickens County, Georgia, until these matters have been determined for his guidance and the guidance of petitioner and all others similarly situated, and to protect the interests of the legatees and the cestuis que trust under said will.'
In substance, the petition as amended alleged as follows: L. E. Tate is sued in his individual capacity, and in his office of trust under the will of S. C. Tate, deceased. Under the will of said S. C. Tate, copy of which is attached to the petition, said defendant is the sole surviving trustee, and the estate of S. C. Tate has been fully administered in so far as all the duties of the executor are concerned, and said estate is being operated as a trust estate by said L. E. Tate. A valid trust was created by Item 3 of the will, in that all the real estate of the testator situated within the limits of Pickens County under said will was to be kept together and managed for the benefit of the children of the testator during the life of each and all of them, with the profits arising therefrom to be divided equally among the children then in life, and among the issue of the children deceased leaving issue; and under Item 4 of the will, after the death of all the children of S. C. Tate all the real estate situated in Pickens County, and all the real estate without the limits of Pickens County not disposed of by the executors under Item 3, was to be divided equally among the issue of the children of the testator then in being. The only children of S. C. Tate in life are three in number. These three children and the living issue of the deceased children of S. C. Tate are made parties defendant. Item 9 of the will provides as follows: 'None of my legatees are authorized to sell or transfer their legacy or any part thereof so far as the same may pertain or apply to any real estate or lease of marble interest, and if any of said legatees shall attempt so to do, the legacy or interest in said real estate willed to him or her shall immediately vest in the legatees who do not take part in such effort or attempt, and such an attempt shall be evidenced by a written transfer and not otherwise.' The defendant Tate Hinton, a son of Mrs. Emma Tate Hinton, a deceased child of S. C. Tate, on July 17, 1930, executed to Sam Tate a written assignment or transfer conveying all his right, title, and interest in the estate of S. C. Tate, which interest was retransferred by Sam Tate to Tate Hinton on September 17, 1938, and also by the receivers of the Sam Tate estate on September 15, 1941. E. J. Darnell, a son of Mollie Tate Darnell, a deceased child of S. C. Tate, on January 12, 1925, executed a writing conveying and assigning to Georgia Marble Company all his interest in the S. C. Tate estate, and on February 12, 1942, Georgia Marble Company executed a written assignment retransferring to E. J. Darnell all the interest it received under the transfer of January 12, 1925. Copies of these instruments were attached to the petition as amended. L. E. Tate, as trustee under the will of S. C. Tate, has paid to Tate Hinton and E. J. Darnell their proportionate parts of the income from the S. C. Tate estate, without regard to the forfeiture thereof 'and restraint of alienation attempted to be imposed' under said Item 9. If said forfeiture provision is valid, then the plaintiff under the will would be entitled to receive a larger proportion of the income than he is now receiving. The legacy to the plaintiff of the income from the estate has been assented to by the executor.
It was further alleged: L. E. Tate on September 5, 1949, filed with the Ordinary of Pickens County a letter, copy of which was attached to the petition, in which said Tate expressly desired to be relieved as executor, and tendered his resignation, to become effective on October 1, 1949, 'or as soon thereafter as my successor as executor of said will shall be selected by a majority of the legatees of age,' as set out in Item 14 of the will of S. C. Tate. Said will does not authorize the defendant L. E. Tate either as executor or trustee to resign or disclaim his trust. Said L. E. Tate is acting as trustee under the will, and the court of ordinary has no jurisdiction to accept his resignation, and only the superior court can accept his resignation and appoint a successor. Under the last sentence of Item 14 of the will--which reads as follows: 'If from death, removal, or any other cause the office of trust of executorship shall become vacant, I will that a majority of the legatees of age at that time select an executor to carry out the purpose of this will'--there are four possible interpretations as to who would be eligible to vote in the nomination of a successor to L. E. Tate, and the selection of his successor is a matter of extreme importance to all the legatees under the will, because of their inability to act in unison on matters affecting their common interests in said estate. The court of ordinary has no jurisdiction to construe the will or determine the rights of the legatees, but the determination of such issues is vested solely in the superior court.
It was asserted that a justiciable controversy existed: (a) over the validity of the forfeiture clause provided in Item 9 of the will, and over the question as to whether the instruments purported to have been executed by Tate Hinton and E. J. Darnell constituted a violation of that item, and 'a construction of the validity and application of Item 9 is essential as a basis for the recovery of the bequeathed income to your petitioner;' and (b) as to whether the powers granted in the will to the nominated executors are personal to them, or would run to the successor executor.
It was alleged that the plaintiff cannot avail himself of any remedy at law or in the court of ordinary to have the issues and matters set forth in the petition determined. The prayers were: (a) that, pending determination of the issues raised in this proceeding, the defendants be restrained from further proceeding in the Court of Ordinary of Pickens County or in any other court in any matter involving the will or estate of S. C. Tate, or the resignation of L. E. Tate as executor, or the selection of a successor executor or trustee; (b) that the court construe and declare the legal relations of the interested parties in and to each of the several matters alleged in the petition, and construe the will of S. C. Tate; and (c) that, if the court construes Item 9 of the will as valid and as having been violated, then it direct L. E. Tate to make to the plaintiff an appropriate accounting of the income and payments accordingly.
After the writ of error reached this court, the plaintiff in error filed a motion to amend the bill of exceptions by making L. E. Tate, in his capacity as executor of the will of S. C. Tate, a party defendant in error; and to have the demurrer of L. E. Tate, as executor, which was sustained by the trial court, considered as a part of the record in the hearing and determination of the case in this court. Service of this motion was acknowledged by counsel for L. E. Tate, as executor, and counsel for the other parties who were named as defendants in error in the bill of exceptions; also such parties have by written agreement consented to the allowance of this motion.
Henderson & Burtz, Canton, Pickett & Pickett, Jasper, James H. Therrell, Atlanta, for plaintiff in error.
Wood & Tallant, H. G. Vandivere, Canton, H. L. Buffington, Jr., Canton, Hall & Bloch, Macon, Tye, Thomson & Tye, Atlanta, William A. Ingram, Cartersville, for defendants in error.
The motion of the plaintiff in error to amend the bill of exceptions by naming L. E. Tate, in his capacity as executor of the will of S. C. Tate, deceased, as a defendant in error, and to have the demurrer of L. E. Tate, as executor, and the order sustaining the same considered by the court as a part of the record, is granted.
1. As we construe the petition as amended, it is an action for a declaratory judgment under the Act of 1945, Ga.L. 1945, p. 137, Code, Ann.Supp., § 110-1101 et seq.; and the prayers for a construction of the will, and the injunctive relief against the pending application of the executor in the court of ordinary to resign, are only incidental to the primary...
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