Ewing v. Tanner

• Court: Georgia Supreme Court
• Writing for the Court: HUTCHESON, Justice.
• Citation: Ewing v. Tanner, 184 Ga. 773, 193 S.E. 243 (Ga. 1937)
• Decision Date: 15 October 1937
• Docket Number: 11919.
• Parties: EWING v. TANNER.

193 S.E. 243

184 Ga. 773

EWING v. TANNER.

No. 11919.

Supreme Court of Georgia

October 15, 1937

Error from Superior Court, Coffee County; M. D. Dickerson, Judge.

Action by Mary Lurline Tanner Ewing against E. T. Tanner administrator. To review a judgment of nonsuit, plaintiff brings error.

Affirmed.

RUSSELL C.J., and ATKINSON, P.J., dissenting.

Syllabus by the Court.

The evidence failed to show that the plaintiff's possession was accompanied by a claim of right. The court did not err in granting a nonsuit in the action brought to establish her claim of title by adverse possession of the personal property in question.

Mary Lurline Tanner Ewing brought her petition returnable to the October term, 1936, of the superior court alleging substantially as follows: B. H. Tanner, a resident of Coffee county, died intestate on December 20, 1920. At the time of his death he owned two certificates of beneficiary interest in the State Mutual Life Insurance Company, numbered 104 and 151, 'each of the par value of $5,000, and each covering 50 shares of beneficiary interest.' In February 1921, Elie Tanner and E. L. Tanner were appointed administrators of the estate of B. H. Tanner. At the time of his death, and for about ten years afterward, the certificates were considered practically worthless, and were appraised at a value of $1 in the inventory and appraisement of the estate. On November 9, 1921, the administrators applied to the court of ordinary for leave to sell, among other property, 'one hundred (100) shares of the capital stock of the State Mutual Life Insurance Company.' Order granting leave to sell was passed, and the property was advertised for sale on the first Tuesday in January, 1922. At this sale the two certificates of beneficiary interest were sold to Mrs. B. H. Tanner, 'and were subsequent to said sale delivered to the said Mrs. B. H. Tanner, * * * and the said Mrs. B. H. Tanner, for more than thirteen years next succeeding January 3, 1922, has been in peaceable possession of said certificates * * * with a bona fide claim of title thereto; and with knowledge of said bona fide claim of title, and of the possession by the said Mrs. B. H. Tanner of said certificates, the administrators aforesaid permitted said possession to continue until they were by the court of ordinary fully and finally discharged as administrators of said estate on November 1, 1926, and have since as heirs of the said B. H. Tanner, deceased, permitted said possession to continue, without any legal action, and without any claim that said certificates of beneficiary interest were part of the unadministered assets of the estate of B. H. Tanner, * * * until during the early part of the year 1936, at which time it was discovered by said persons that said certificates * * * had some value.' It is now contended by Elic Tanner, as administrator de bonis non of the estate of B. H. Tanner, appointed in 1936, that said certificates belong to the estate of B. H. Tanner, and he had himself appointed administrator for the purpose of claiming any fund realized from said certificates as the property of said estate. J. A. Roberts had received from the Insurance Commissioner of the state of Georgia a liquidating dividend amounting to $1,300, and is now in possession as an innocent stakeholder of said fund, to which more than one person lays claim of such character as to render it doubtful or dangerous for him to turn over said fund to any one laying claim thereto. The rightful owner is entitled to an order directing Roberts to pay the fund to such owner, and the petition is brought for that purpose.

The petitioner claims (in paragraph 19) ownership of the title to said certificates by virtue of a transfer dated February 5, 1936, by Mrs. B. H. Tanner to petitioner, and by virtue of the ownership of said certificates by Mrs. B. H. Tanner; for that 'said certificates of beneficiary interest were delivered to Mrs. B. H. Tanner, * * * by or with the knowledge and consent of the administrators of the estate of B. H. Tanner, deceased, at or about the time of the advertised sale thereof; and the said Mrs. B. H. Tanner * * * has from said date and until the transfer by her of said certificates of beneficiary interest to Mary Lurline Tanner Ewing on February 5, 1936, and the said Mary Lurline Tanner Ewing has from February 5, 1936, and until said certificates of beneficiary interest were surrendered to the Insurance Commissioner of the State of Georgia on or about July 9, 1936, openly, continuously, peaceably, adversely, uninterruptedly, in good faith, and with claim of title, had exclusive possession and control of said certificates of beneficiary interest.' Petitioner shows that process should issue, directed to Roberts as an innocent stakeholder, and to Elie Tanner, as administrator de bonis non of the estate of B. H. Tanner, who, as such, should be required to assert has claim in this proceeding, and that Roberts be required to interplead. The action will avoid a multiplicity of suits and make it possible for all parties at interest to have their claim adjudicated in one action. The prayers are: '(a) That process may issue, requiring the said J. A. Roberts and the said Elie Tanner as administrator de bonis non of the estate of B. H. Tanner, deceased, to file their response or answers hereto, or to show cause, if any they have and can, at the next term of this court, why the said J. A. Roberts should not be required to interplead in this cause, and why the said Elie Tanner as administrator aforesaid should not be required to set up his claim in his representative capacity in this proceeding. (b) That petitioner by decree be awarded the fund in controversy. (c) That the said J. A. Roberts be required to pay said fund to petitioner. (d) That petitioner have such other and further equitable and legal relief as to the court may seem meet and proper.' No demurrer to the petition was filed. Roberts answered, admitting possession of the fund, claiming that it would be dangerous for him to pay it over to either claimant until the respective claims were adjudicated, and expressing his willingness to abide by the order of the court. Elie Tanner, as administrator, filed his answer. He admitted the allegations of the petition, except paragraphs 13 and 19; denied that the certificates were ever by the administrators of the estate of B. H. Tanner, or by any one else with authority, sold or delivered to any one; and claimed the funds derived therefrom as property of the estate of B. H. Tanner for the purpose of distribution among the heirs of the estate. At the trial, after the close of the plaintiff's evidence, the court granted an order of nonsuit and dismissed the action. So far as appears from the record, no order was passed relating to the disposition of the fund. The plaintiff excepted, assigning error on the grant of the nonsuit, and on several rulings of the court during the trial, relating to admissibility of evidence.

E. L Tanner, one of the previous administrators of the estate of B. H. Tanner, called as a witness by the plaintiff for the purpose of cross-examination by reason of his interest as an heir of the decedent, testified, in part, as follows: 'I know she [Mrs. B. H. Tanner] had one certificate, and had it all the time; and I do not know that she turned it over to me for the purpose of having me handle it. My recollection is now that there was one down there at Fales [deceased's home], that she had that, and when we paid off some taxes, either to the Brunswick Bank and Trust Company, or the Pearsons Bank, that one of them was up as collateral, and when we paid that off it came back into our hands. I could be wrong, but I believe that is how come me with one of them and her with one. * * * I think I remember writing Mrs. Tanner on March 25, 1936: 'Dear Mother: I am enclosing letter from Colonel Marion Smith in regard to the old State Mutual certificate we hold. If you remember, you have one that I left along with mine.' * * * She had one, and I turned one over to Marion Smith. I said it is hers because, whether it was legal or not, I don't know how those things come about, it has been so blooming long. At the time all this was happening none of us placed any value on the things at all. I don't believe they were ever sold. The one she had down there, I never did ask her whether she had a transfer from my father on it or not. I haven't seen the one she had. I knew all the time she had that. I have known it for the last fifteen years; she had it all the while. I don't think she turned the other one over to me to file with Marion Smith for her. I think the other one came into my hands through one of these banks. As to how it happened that that one that came into my hands from one of these banks was referred to in my letter of March 25, 1936, as being Mrs. Tanner's, I just considered the whole thing hers. As far as I was concerned it didn't make any difference, and it don't today. * * * All the time I have had this certificate that I filed with Marion Smith I didn't hold it for Mrs. B. H. Tanner and file it for her. He gave me a receipt for it. The receipt says, 'Received of E. L. and E. T. [Elie] Tanner certificate' so and so. I carried on a correspondence with my mother in February, 1926 in which I referred to the certificates of the State Mutual Life Insurance Company, and told Mrs. Tanner then that I wanted her to know that I am staying in behind our State Mutual matters, simply because she had one of the certificates down there. As far as I was concerned, it was all right for her to have whatever she might get out of it; and just how she became--had the certificates, whether they were given her by my father--I don't know whether there was any transfer to them; but...