Estill v. Estill

• Decision Date: 17 November 1917
• Docket Number: 47.
• Citation: 94 S.E. 304,147 Ga. 358
• Parties: ESTILL ET AL. v. ESTILL ET AL.
• Court: Georgia Supreme Court

94 S.E. 304

147 Ga. 358

ESTILL ET AL. v. ESTILL ET AL.

No. 47.

Supreme Court of Georgia

November 17, 1917

Syllabus by the Court.

While a strict bill of interpleader involves two suits, a petition in the nature of a bill of interpleader does not necessarily involve two sets of pleadings, though the better practice might be to require them. Consequently, where a petition was filed by a trustee in whose hands there was a fund for distribution, which it was alleged was claimed by all of the defendants, and the prayer was for an order requiring the defendants to interplead, and each of the defendants answered the petition, either admitting all of its allegations or setting up such facts as required the granting of the order of interpleader, and each asserting a claim to the fund in the hands of the trustee, and where each defendant independently, either admitted the allegations of the petition for interpleader, or expressly averred such facts as to create an issue between the codefendants as to which was entitled to the fund, and the case was tried on the issues thus raised, it was not error, under the facts of this case to decline to enter a decree or direct a verdict for two of the defendants, on their motion upon the ground that the other defendants had not in their answers set up a claim to the fund, and that the answers of the movants were verified and, in the absence of such opposing claim by the codefendants, were to be taken as proved.

(a) The codefendants did by their pleadings set up a claim to the income from the fund in the hands of the trustee.

(b) An amendment to the pleadings can be made at any time before the verdict. The amendments in the present case, whether taken as amendments or as original pleadings, were in time, and there was sufficient basis to amend by.

(c) It was not error to refuse to dismiss the motion for a new trial.

The evidence on the issue of fact whether the minor ward was the child of testator's son Marion was conflicting, and the court did not err in refusing to direct a verdict.

The verdict was not required under the law and the evidence, and the court did not err in the first grant of a new trial.

Error from Superior Court, Chatham County; W. W. Sheppard, Judge.

Suit by Elizabeth Pate Estill, guardian of Marian Virginia Estill against the Citizens' & Southern Bank of Savannah, trustee under the will of John Holbrook Estill, deceased, with petition by the trustee interpleading John Estill and others, with answers by Elizabeth Pate Estill, guardian, and others. Verdict in favor of Marian Virginia Estill, motion by John Estill and others for a new trial granted, and Marian Virginia Estill and Elizabeth Pate Estill, guardian, bring error. Affirmed.

W. B. Stubbs and G. N. Alford, both of Savannah, for plaintiffs in error.

Adams & Adams, Robt. L. Colding, Osborne, Lawrence & Abrahams, and T. P. Ravenel, all of Savannah, for defendants in error.

HILL J.

John Holbrook Estill died on November 9, 1907, leaving a will, the eighth item of which, so far as material here, is as follows:

"To the Citizens' & Southern Bank of Savannah one sixth part, which it shall hold as trustee upon the following uses and trusts, namely: To pay the income therefrom to my son Marion W. Estill, during the term of his natural life, for the support of himself and the support and education of his children should he leave any; and after his death, said income to be applied to the support and education of his children, the principal to be equally divided between them when the youngest child attains the age of twenty-one years. In the event of the death of either of said children during minority and without leaving issue, the share of the one so dying shall go to the survivor or survivors, children of a deceased child to represent the parent. If, however, my son Marion W. Estill should depart this life leaving no child or issue of child surviving him, then the one sixth part shall be equally distributed between the distributees of the other five sixths in the manner provided in this item."

After the death of Marion W. Estill on December 27, 1915, his widow, Elizabeth Pate Estill, who had been appointed guardian of Marian Virginia Estill, the reputed minor child of Marion W. and Elizabeth Pate Estill, claimed that the minor was their child and was entitled to receive through her guardian the income of the property theretofore paid to the said Marion W. Estill until his death by the trustee. On refusal of the trustee, Citizens' & Southern Bank, to pay over the income, the guardian brought suit against the trustee to recover it. Whereupon the trustee filed a petition for interpleader, alleging substantially the above-recited facts, and, further, that certain of the defendants had notified petitioner that Marion W. Estill left no child, and that Marian Virginia Estill was not his child, and was not entitled to receive any of the income in controversy. All of the parties defendant claimed to be interested in the property described and the income therefrom, and the claim of the guardian for the minor child conflicts with the claims of the other parties. The defendants John H. Estill, Holbrook T. Estill, and Walter Estill are sons of the testator. Maude M. Key is the widow of John S. Estill, another son, who died since the death of his father. She has since married again, and is the guardian of the three minor children, Annie Lloyd Bazemore, Frederick Albert Estill, and Margaret Elizabeth Estill, who are the children of James S. Estill. Marian J. Estill is the trustee for her minor child, Edward Van Estill, a son of Walter Estill. Helen Van Dyke, Clara Estill, and Stewart Anthony Estill are the children of Holbrook T. and Annie H. Estill. Petitioner, as trustee, is in such position that it cannot safely settle the conflicting claims, and it was prayed that all the defendants be required to answer and interplead, to the end that the question whether Marian Virginia Estill is the child of Marion W. Estill, and as such entitled to the income heretofore paid Marion W. Estill, may be adjudicated.

The court ordered the parties defendant to interplead. Elizabeth Pate Estill, guardian of Marian Virginia Estill, and Marian Virginia Estill, by her guardian, filed answers setting up the claim of the minor to the trust fund, and praying that the trustee be directed to pay the income from the trust property to the guardian. Maude Hill Scarborough, one of the defendants named, filed an answer, in which she admitted some of the allegations of the petition, and stated that she could neither admit nor deny others. By amendment, allowed over objection, she set up her claim to an interest in the trust fund. John H. Estill et al. filed an answer, in which they admitted all the allegations contained in each paragraph of the petition (one of which alleged that all the defendants claimed an interest in the trust fund), and afterward amended their answer to the petition for interpleader, and averred that:

"During the life of Marion W. Estill, realizing in the event he should die without issue said Elizabeth Pate Estill, his wife, would not receive any of the money or property coming from the estate of said John H. Estill, and that the same should revert in the manner mentioned and described in the petition for interpleader, the said Marion W. Estill and Elizabeth Pate Estill conspired to perpetrate a fraud by obtaining possession of a child whom they proclaimed to the world as theirs in order that the portion of the estate set apart for Marion W. Estill upon his death would not be entirely lost to Mrs. Elizabeth Pate Estill; that in pursuance of said fraudulent purpose said Marion W. Estill and Elizabeth Pate Estill obtained possession of a child now known as Marian Virginia Estill, which child is not the child of said Marion W. Estill and Elizabeth Pate Estill; and the said Elizabeth Pate Estill, as the guardian of the said Marian Virginia Estill, is now seeking to claim said portion of said estate for said child. Walter Estill and Maude M. Key (formerly Estill), as guardian of her three minor children, show to the court that it is absolutely necessary for the preservation of that portion of the estate rightfully belonging to them that an attorney should be employed to represent their interest in this litigation, and, in the event said child is found to be not the child of Marion W. Estill and Elizabeth Pate Estill, pray that they be allowed to draw on that portion of said

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