Evans v. Evans

• Decision Date: 07 September 1976
• Docket Number: No. 31030,31030
• Citation: Evans v. Evans, 228 S.E.2d 857, 237 Ga. 549 (Ga. 1976)
• Parties: Warren EVANS et al. v. Ralph EVANS et al.
• Court: Georgia Supreme Court

Page 857

228 S.E.2d 857

237 Ga. 549

Warren EVANS et al. v. Ralph EVANS et al.

No. 31030.

Supreme Court of Georgia.

Sept. 7, 1976.

Rehearing Denied Sept. 17, 1976.

Charke, Haygood & Lynch, Harold G. Clarke, Forsyth, for appellants.

Ham, Mills & Freeman, W. Franklin Freeman, Jr., Forsyth, for appellees.

HILL, Justice.

A jury trial was held to determine the extent to which Ralph Evans was entitled to recover from his father's estate for services to and expenses incurred on behalf of his widowed mother, and the extent to which the estate was entitled to recover from Ralph Evans for rent for a farm for the period from the death of his mother until the date of the trial. The jury awarded Ralph Evans $31,000 and awarded the estate $2,600. Beneficiaries of the remainder of the estate appeal from the judgment of the court based on the verdict.

Paul J. Evans died testate in 1955. For purposes of this case the pertinent portions of his will were as follows: His wife Ottie was given all his stocks, bonds, notes and cash except his Georgia Milk Producers' Confederation stock in which she was given a life estate. She was also given a life interest in his 175 acre farm; his four children, Ralph, John, Warren and Miriam, were to take as remaindermen the interest in the farm at the death of his wife. 'In the division of the lands or in the division of the proceeds from the sale of said lands, my son Ralph Evans is to be given two thousand ($2,000.00) Dollars in addition to the one-fourth interest which he and my other three children will receive from the sale of said farm . . . I request that my land remain intact as a farm if possible; this is not mandatory, but is only a wish.' In addition to the $2,000, Ralph was left all his father's interest in the farm machinery, dairy equipment, and livestock, and the remainder interest in the Georgia Milk Producers' Confederation stock. The sons Ralph and John were appointed executors and were excused from making any returns to the ordinary. The final paragraph of the will stated: 'My said executors are to look after, care for and see that my said wife, Ottie Brewer Johnson Evans, is well cared for during her lifetime, and in the event the above bequests and income are insufficient for her maintenance and support, I authorize and empower my executors to use such portions of the remainder of my property as may be necessary for the proper care of my said wife.'

At the time of Paul Evans' death in 1955, his wife was confined to a wheel chair and his sons Ralph and John, as well as Ralph's wife and child, were living with Paul and Ottie Evans on the farm. Soon after the father's death John moved away. Ralph and his family continued to live with his mother and Ralph operated a dairy on the farm. In 1971 his mother moved to a nursing home and in 1973 she died.

In 1975 Warren and Miriam Evans brought an action against Ralph and John for an accounting, for the partitioning of the farm, to enjoin the cutting of timber on the farm, for damages as a result of the cutting of timber, and for the profits and rent due on the farm since the death of the life tenant, their mother. Ralph counterclaimed for services he rendered to his mother, expenses he incurred on behalf of his mother, and monies he spent to increase or preserve the value of the estate. Prior to trial the parties stipulated that the issues of partition and the executor's commission are not in issue in this case.

At trial, Ralph testified that he spent $1,500 to install a bathroom in 1955, $292 for labor and materials to paint the house in 1955, $550 for labor and materials to paint the outside of the house in 1963, $450 to roof the house in 1957, $400 for labor and materials to roof the house a second time in 1963, $1,553 to remodel the kitchen in 1965, $500 for a pump house in 1967, $600 to build and maintain fences, $1,000 to rebuild a sleeping barn for the cows in 1961, $3,124.30 for property taxes on the farm, $5,447.57 for the electricity for the house, $18,600 ($20 a week for eighteen years) for a maid two days a week, and $18,000 ($1,000 a year for eighteen years) for food for his mother. The plaintiffs objected to testimony as to expenses incurred prior to four years preceding the filing of the counterclaim on the ground that recovery of such expenses was barred by the statute of limitation.

Ralph stated that his mother had an income of approximately $186 a month from several government sources and that the $5,000 or $6,000 which was in her husband's bank account at the time of his death was never used. He also testified that he paid his mother no rent for the use of the farm or the house for the eighteen years while he and his family lived there and operated the dairy farm while she was the life tenant.

The jury awarded Ralph $31,000 as reimbursement and awarded the estate $2,600 as rent from Ralph for the farm from 1973 until 1975. Warren and Miriam appeal.

The plaintiffs enumerate as error the overruling of their objections to Ralph Evans' testimony as to expenses incurred prior to four years preceding the filing of the counterclaim, the court's refusal to give their requests to charge the jury that Ralph Evans' recovery would be limited to those expenses for improvements to real estate and for his mother incurred within four years of the institution of the suit for...