Freeman v. Brown

• Decision Date: 31 March 1902
• Court: Georgia Supreme Court
• Parties: FREEMAN, Ordinary, v. BROWN et al.

41 S.E. 385

115 Ga. 23

FREEMAN, Ordinary,

v.BROWN et al.

Supreme Court of Georgia.

March 31, 1902.

DEMURRER—TIME FOR AMENDMENT—WILL— LEGACY IN TRUST — CONSTRUCTION — LEGATEE'S ADMINISTRATOR—LIABILITY—A CCEPT-ANCE OF TRUST—PETITION—CONSTRUCTION OF ALLEGATIONS.

1. Although upon hearing a demurrer the court "decided to sustain the same and dismiss plaintiff's petition, and dictated his decision to the court stenographer, " and then discharged the jury that had been impaneled to try thecase, and "took up another case, " yet if "before the court stenographer completed transcribing the judgment of the court, and before the court signed the same, " an amendment to the petition was offered by the plaintiff, such amendment should not have been disallowed upon the ground that it was offered too late.

2. A bequest of $1,000 to a named person, "to be divided equally between" his children by his first wife, nine in all, the person so named to take "one child's part, and each child to draw one hundred dollars, with interest, as it conies of age, from the date of" the testator's death, is, as to one-tenth of the legacy, a direct bequest to the person so named, and as to the other nine-tenths a bequest to him in trust for the children; and the acceptance of the trust charges him with the duty of making and paying over to the children interest on their respective portions as they become entitled to receive the same.

3. Where such a legatee, upon the death of the testator, became administrator with the will annexed upon his estate, the beneficiaries of the portion of the legacy to which the trust attached cannot, after the decease of such administrator, maintain an action against his estate and the sureties upon his administration bond, based on the theory that a separate legacy of $100 was bequeathed to each of them, which it was the duty of the administrator with the will annexed to retain possession of until the legatee entitled thereto became of age, and then to pay the same, with interest thereon from the date of the testator's death, to such legatee.

4. Where one appointed trustee, with notice of the trust, voluntarily undertakes to discharge duties devolving upon the trustee, and interferes with the trust fund in such a manner and to such an extent as that his interference therewith cannot be plainly referred to some other ground of action, he will be conclusively presumed to have accepted the trust.

5. Where a petition alleges that one to whom a legacy such as that described in the second headnote had been bequeathed became, upon the death of the testator, the administrator with the will annexed upon his estate, and subsequently paid to himself the portion of the legacy bequeathed to him in his own right, and, thereafter, "from time to time, made payments out of said legacy" to the cestuis que trustent interested in the remaining portion thereof, and "partially administered said legacy, " it shows that the sum constituting the legacy had been severed by him from the other assets of the estate, and had passed from him as administrator to him as legatee and trustee, and that his liability therefor as administrator had terminated.

(Syllabus by the Court.)

Error from superior court, White county; J. B. Estes, Judge.

Action by J. H. Freeman, ordinary of White county, for use, etc., against S. L. Brown, administrator of the estate of E. J. Thurmond, deceased, and others. From a judgment in favor of defendants, plaintiff brings error. Affirmed.

I. L. Oakes and J. J. Kimsey, for plaintiff in error.

J. W. H. Underwood and H. H. Dean, for defendants in error.

FISH, J. J. H. Freeman, ordinary of White county, brought suit in the superior court of that county, for the use of James Thurmond and others, "children of E. J. Thurmond and his wife, Mary, " against S. L. Brown, administrator of E. J. Thurmond, de ceased, and E. J. Houston and others, as sureties upon the bond of E. J. Thurmond as administrator with the will annexed of John Glen, deceased. The suit was brought to recover the several amounts alleged to be due the respective usees of the plaintiff, as legatees under the will of John Glen. The petition alleged that E. J. Thurmond, as administrator with the will annexed of Glen, had received into his hands ample assets of the estate of such testator, over and above the amount necessary to pay the debts and the costs of administration, to pay the amounts due upon the legacies of the usees, and that he and Brown, the administrator upon his estate, had each failed and refused to pay such legacies. A copy of the will of Glen, and a copy of the bond of E. J. Thurmond as administrator with the will annexed of Glen's estate, were attached to the petition as exhibits. In the will the testator disposed of his estate as follows: "To E. J. Thurmond I will one thousand dollars, to be divided equally between the children of E. J. Thurmond and his wife, Mary, being nine in all; E J. Thurmond, one child's part; and each child to draw one hundred dollars, with interest, as it comes of age, from the date of my death. Also I will to Caroline Hix four hundred dollars for the use of her and her children." The defendants demurred to the petition. The bill of exceptions recites that "upon hearing argument on said demurrer, and considering the same, the court decided to sustain the same and dismiss the plaintiff's petition, and dictated bis decision to the court stenographer." Then follows the decision of the court, embodied in a written opinion, in which the court, in effect, held that as the testator bequeathed $1,000 to E. J. Thurmond, $900 of which amount was bequeathed to him in trust for his nine children mentioned in the will, and Thurmond upon the death of the testator having become administrator with the will annexed upon the testator's estate, so soon as he, as such administrator, came into possession of funds from which this legacy of $1,000 could be lawfully paid, eo instanti the portion thereof which he was to receive in trust for his children passed, by mere operation of law, from him as administrator to him as trustee, and his liability therefor as administrator terminated. The bill of exceptions also recites that "before the court stenographer had finished transcribing the said decision of the court on the demurrer, and before said decision was signed by the court, counsel for plaintiff presented the following amendment to his petition, " and then sets forth the amendment "The court refused to allow said amendment and, in rejecting it, passed the following order: 'This proposed amendment is refused. After the Jury was chosen, and after argument on the demurrer, the court dismissed the case on the demurrer, and dictated the decision to the court stenographer, and discharged the jury, and tookup another case. Before the court stenographer completed transcribing the judgment of the court, and before the court signed the same, this amendment was presented; and the court being of opinion that it was offered too late, and also is not germane to the case, and is insufficient in law, the same is overruled.' The court then signed the two orders, —first the one disallowing the proposed amendment, and then the one sustaining the demurrer to the plaintiff's petition." To each of these rulings the plaintiff excepted.

1 The first question with which we have to deal is one of practice. Was the amendment which the court refused to allow offered too late? Under section 5097 of the Civll Oode, a plaintiff has the right to amend his petition "at any stage of the cause, whether in matter of form or substance, provided there is enough In the pleadings to amend by." If, therefore, this proposed amendment was offered at a stage of the cause, It was in time. It was offered at a stage of the cause, unless the cause was then out of court We are clearly of opinion that the case was still pending in court Its dismissal was Impending and imminent, but had not yet taken place. The judge had determined to sustain the demurrer and dismiss the case; had dictated the matter which was to form the judgment of dismissal to the court stenographer, and that official was preparing the same for the Judge's signature; but before he had completed his task, and, of course, before the judge had signed the Judgment, the amendment was offered. There was at that time nothing which was in condition to go upon the records of the court The oral announcement of the judge was no Judgment; neither were the shorthand notes of the stenographer of the matter and language of this oral announcement the judgment of the court; and certainly the uncompleted transcription of these notes into longhand was no judgment. What the judge orally declares is no judgment until it has been put in writing and entered as such. The decision In Lytle v. De Vaughn, 81 Ga. 226, 7 S. E. 281, which was an illegality case, is directly in point There it was held: "The motion to amend is in time If made before any order or judgment dismissing the illegality has been entered, although the court has orally announced that the motion to dismiss is sustained." In that case the plaintiff moved to dismiss the illegality upon the ground that the bond given by the defendant did not comply with the statute. "The court announced that the motion was sustained, but, before any entry thereof was made, defendant moved for leave to amend the bond so as to make it comply with the statute, which amendment he was ready and prepared to make. This amendment was refused, and an order granted dismissing the illegality." In the opinion, Chief Justice Bleckley said: "That announcement [the announcement by the court that the motion to dismiss was sus tained], the court being one of record, did not terminate the case. It remained pending in court to await the preparation and entry of the final order or judgment. By analogy to the rule for amending pleadings (Code, $ 5097), the bond was amendable 'at any stage of the cause, ' and, when the...