Freeman v. Collier

• Decision Date: 11 October 1948
• Docket Number: 16375.
• Citation: 50 S.E.2d 61,204 Ga. 329
• Parties: FREEMAN et al. v. COLLIER et al.
• Court: Georgia Supreme Court

50 S.E.2d 61

204 Ga. 329

FREEMAN et al. v. COLLIER et al.

No. 16375.

Supreme Court of Georgia

October 11, 1948

Syllabus by the Court.

1. Where a judge of the superior court overruled exceptions to an auditor's report on February 12, 1947, and error was assigned on such rulings for the first time in an amendment to a motion for a new trial filed on June 5, 1948, such assignment of error was too late to bring under review the correctness of the ruling complained of.

(a) Under the above ruling, the eight grounds added by amendment to the original motion for a new trial cannot be considered.

2. Where services are rendered by an adult daughter in attending to the business of her mother in the conduct of a hotel owned by the latter, and where such services have a value materially in excess of the support received from the mother and thereby tend to enhance the mother's estate, the jury could find from the evidence that, considering all the circumstances, both the mother and the daughter contemplated that the latter should receive compensation for the services rendered; especially so in view of the character of the services rendered.

3. The verdict on all issues was authorized by the evidence, and the court did not err in refusing a new trial.

Mrs. J O. Freeman died testate, a resident of Stephens County, on August 18, 1945. Items 3, 6, and 7 of her will were as follows: 3. 'I desire and direct that the Albermarle Hotel be continued in operation for a period not to exceed four years after my death, to be operated by my executrix hereinafter named, the exact term or period of such operation to be left to the discretion of my said executrix. In this connection, I desire and direct that my executrix pay out of the net profits of the operation of said hotel the sum of' $50 'per month to my following named children, to wit: J. F. Freeman, B. D Freeman, and Theo Freeman. These payments are to be continued as long as my executrix operates said hotel under these terms, and are conditioned upon her making such amounts as a net profit. Any and all amounts netted from such operation of said hotel over and above these payments are hereby given and devised to my daughter, Mrs. Lou Mae Collier.' 6. 'After the expiration of four years from my death, or sooner if my executrix deems advisable, I desire and direct that all of my property of every kind and character be sold by my executrix and the proceeds divided equally between my four children, to wit: J. F. Freeman, B. D. Freeman, Theo Freeman, and Mrs. Lou Mae Collier, or in the event of the death of either of these, before my death, their child or children per stirpes. I specifically direct that these four shares of my estate be paid to those entitled to the same under this item at the rate of' $100 'per month per share. I express the desire that one of the above-named children purchase the Albermarle Hotel when sold, as I would like for it to remain in the family if possible. To this end I suggest that my four children, as named above, agree, if possible, on a date and terms of sale for the Albermarle Hotel that will enable one of them to purchase the same.' 7. 'I hereby name, constitute, and appoint my daughter Mrs. Lou Mae Collier, as the sole executrix of this my last will and testament, and expressly relieve her from giving any bond and from making any returns to any court whatsoever, or to the ordinary of any county. I expressly confer upon her full authority and power to sell any and all of my property, both real and personal, at public or private sale, with or without notice or advertisement, and without any order of court and to make good and sufficient conveyances and title to the purchasers or purchaser, holding the proceeds of any sales to the uses provided for in this will. I further expressly authorize any empower my said executrix to sell any of my property under such terms, cash or otherwise, as she deems proper and advisable.'

The will was probated in solemn form and the nominated executrix qualified as such on October 2, 1945. By options dated 'this ___ day of _____ 1945,' Theo D. Freeman, J. F. Freeman, and B. D. Freeman each bound himself to sell to Mrs. Lou Mae Collier his 'one fourth undivided interest in and to the estate of Mrs. J. O. Freeman' on or before January 1, 1946, for $12,000. According to the deed dated December 4, 1945, each of the three Freemans just named conveyed to Mrs. Lou Mae Collier what was described as the Albermarle Hotel property, with all equipment, and two vacant lots, in Stephens County. The deed contained this recital: 'This deed is made to convey to Mrs. Lou Mae Collier, my one-fourth interest in and to all of the assets, both real and personal, of the estate of Mrs. J. O. Freeman, deceased, and is executed as a full and complete release of my interest in said estate.' By receipt dated December 4, 1945, each of the three Freemans acknowledged having received $12,000 from Mrs. Collier 'in full, entire, and complete satisfaction of all the right, title, claim, interest, property or demand I now have, or might have, in and upon the estate, both real and personal, of said Mrs. J. O. Freeman, deceased, and said Mrs. Lou Mae Collier, as executrix, as aforesaid, of any and all further claims on my part against said estate.'

On December 6, 1945, Mrs. Collier, as executrix, executed to M. Green and John S. Sosebee a deed to the Albermarle Hotel property, 'also all equipment of every description contained in said building.' This deed recited a consideration of $10,000 'and other considerations,' but the purchase-price paid to the executrix was $70,000 cash.

On January 18, 1946, Theo D. Freeman, J. F. Freeman, and B. D. Freeman, through their attorneys, presented to the Judge of the Superior Court of Stephens County an equitable petition naming as defendants Mrs. Lou Mae Collier, individually and as executrix, her husband, A. B. Collier, and the Bank of Toccoa. In this petition numerous allegations of fraud and deceit were made as to the conduct of Mrs. Collier and her husband respecting the handling of the estate, securing deeds from the plaintiffs, making sale of the hotel and other matters. The petition sought among other relief the removal of Mrs. Collier as executrix, appointment of a receiver, administration of the estate in equity, and impounding of bank accounts of Mrs. Collier. The judge granted certain restraining orders as prayed, and ordered an interlocutory hearing. At such hearing, after the introduction of evidence and by consent of the parties, the following order was entered:

'Interlocutory trial in the above matter coming on for hearing on this date, and after the introduction of evidence, the parties hereto have agreed:

'That the purported conveyances from plaintiffs to Mrs. A. B. Collier, one of the defendants, is ineffectual and that the sale of the hotel property belonging to the estate of Mrs. J. O. Freeman is to be treated as an asset of said estate, to be distributed according to the terms of the will of the said Mrs. Freeman, and that the sole issues to be determined in this suit will be an accounting by the executrix, the allowance or disallowance of claims against the estate, and the determination of amounts due to the devisees under the will; and

'It appearing to the court that this accounting can best be had by the appointment of an auditor, and all parties consenting thereto, it is

'Considered, ordered and adjudged that the Hon. George G. Allen be and he is hereby appointed as auditor to hear said case, to make complete findings and report same to the court as provided by law; said auditor to have full and complete powers as conferred upon such auditors by law.

'This February 15, 1946.'

Mrs. Collier, as executrix and as an individual, filed demurrers to the petition. She also filed an answer in each capacity. Paragraph 50 of her answer as an individual alleged: 'That the estate of Mrs. J. O. Freeman is indebted to defendant in the sum of $4,800 for services rendered as manager of the Albermarle Hotel for a period of sixteen months immediately prior to January 1, 1943, and this defendant asks a lien against said estate for said amount.' Paragraph 47 of her answer as executrix asserted a claim for $6,400 as the value of furniture 'belonging to Colliers' sold with the hotel, and a claim for 'repairs to hotel (Mrs. A. B. Collier, $2531.22).' It appeared that Mrs. A. B. Collier and Mrs. Lou Mae Collier were the same person. The plaintiffs filed separate demurrers attacking paragraphs 50 and 47 of Mrs. Collier's answers as just stated.

Mrs. Collier also claimed as an expense $2000 attorneys' fees due by her as executrix.

The auditor, after hearing evidence, made his report, the concluding paragraph of which was as follows: 'Therefore there is a balance left in the hands of the executrix of the sum of $6215.77, subject to distribution, and upon the payment of which by the executrix will bring to a close the administration of said estate.' Exceptions of law and of fact were filed to the report by the plaintiffs and by Mrs. Collier as an individual and as executrix. As the result of rulings on these exceptions, the judge submitted to the jury four questions to be answered, to wit: 1. The value of the furniture which Mrs. Collier contended she bought and placed in the hotel. 2. The value of repairs claimed to have been made to the hotel by Mrs. Collier. 3. The amount to be allowed to attorneys representing the Freeman estate. 4. The claim of Mrs. Collier for services rendered in operating the hotel for sixteen months immediately prior to January 1, 1943. The jury's answers were, the value of the furniture, $5,400; value of repairs to hotel, $2,382.66; attorneys' fees, $1000; for services, $4800. Thereup...