Golding v. Mccall

• Citation: 5 Ga.App. 545,63 S.E. 706
• Decision Date: 09 February 1909
• Docket Number: (No. 1,245.)
• Parties: GOLDING . v. McCALL.
• Court: Georgia Court of Appeals

63 S.E. 706

5 Ga.App. 545

GOLDING .

v.McCALL.

(No. 1, 245.)

Court of Appeals of Georgia.

Feb. 9, 1909.

1. Bills and Notes (§ 91^*) — Contracts (§ 108*)—Consideration—Sufficiency and Validity.

A note made by a widow to a creditor of the deceased husband's estate, in which she promised to pay the creditor's debt, provided it was not paid by the estate, the consideration for the note being the withdrawal by the creditor of objections filed by him to the allowance of a year's support to her out of the estate, is in the absence of fraud, a valid contract. And, when the creditor to whom the note was made payable failed by reason of the insolvency of the estate to collect therefrom the amount of his debt, the contingency of the widow's liability on the note to such creditor was determined.

[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. § 166; Dec. Dig. § 91: * Contracts, Cent. Dig. § 498; Dec. Dig. § 108.*]

2. Executors and Administrators (§§ 275, 434*)—Claims Against Estate—Payment— Set-Off.

Where the administrator of an estate advanced to a creditor of the estate the amount of his debt, and contemporaneously took from the creditor a written obligation to refund to the administrator on the final settlement of the estate the amount so advanced, the advance was not a payment by the administrator of the debt of the creditor against the estate, but was simply a loan made by the administrator to the creditor to be refunded by the latter to the former on the final settlement of the estate. Where the creditor is sued by the representative of the estate on his written obligation to repay the amount so loaned to him by the administrator, he cannot set off his debt against the estate as against the loan.

[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 1070, 1698; Dec. Dig. §§ 275, 434.*]

3. Principal and Surety (§ 112*) — Discharge of Surety.

Where a widow makes her note to a creditor of her husband's estate, conditioned to pay whatever amount of his debt the creditor may fail to collect out of the estate, in consideration of the withdrawal by the creditor of objections filed by him to the allowance of a year's support for her and her minor children out of the estate, she is not released from the payment of her note according to its terms by the acceptance by the creditor of his pro rata share of a fund realized by a settlement made by the creditors of the estate, under the approval of the ordinary, with the surety on the bond of the administrator of the estate. The acceptance of his pro rata share of this sum by the creditor does not increase the widow's risk on her note, but decreases the amount of her ultimate liability thereon.

[Ed. Note.—For other cases, see Principal and Surety, Cent. Dig. § 227; Dec. Dig. § 112.*]

(Syllabus by the Court.)

Error from Superior Court, Brooks County; R. G. Mitchell, Judge.

Action by J. H. MoCall and another against Georgia V. P. Golding. Judgment for plaintiff McCall, and defendant brings error. Affirmed.

Fuller Groover and J. H. McCall brought suit against Mrs. Georgia V. P. Golding as maker of a note dated December 14, 1894 and payable 12 months after date, promising to pay them $250 and interest at 8 per cent, "provided the estate of W. T. Golding, deceased, should fail to pay to the said Fuller Groover and J. H. McCall the amounts in full the date due by said estate to each one of them." The circumstances under which the note was given were as follows: Mrs. Golding, the maker, was the widow of W. T. Golding, and had applied for 12 months' support to be set aside out of her husband's estate for herself and her minor children. The commissioners In their return allowed her for this purpose $1,500. Fuller Groover and J. H. McCall were both creditors of the estate of W. T. Golding. There were many other creditors of the estate. Groover and McCall filed objections to the year's support allowed to the widow and the minor children, but in consideration of this note withdrew their objections to the allowance. It was admitted that Groover was paid in full his claim against the estate of W. T. Golding by the administrator, and it also appears that on November 27, 1894, the administrator paid to McCall $481.31, the total amount of the Indebtedness of the estate to him whereupon McCall gave to the administrator the following writing: "Quitman, Ga. Nov. 27, 1894. Due J. D. Wade, Jr., administrator of W. T. Golding, deceased, $481.31, to be paid when the estate Is wound up, without interest to either party. [Signed] J. H. McCall." In the settlement of the administrator's account the ordinary allowed the receipt for this payment, as a voucher. Subsequently a receiver was appointed for the assets of W. T. Goldlng's estate, and brought suit on the above-stated writing given by McCall to the administrator, and this suit was settled by McCall agreeing to pay to the receiver $225, a part of the settlement being that McCall should retain the balance of the $481.31 represented by his duebill as his share of the money paid to the ordinary for the use of the creditors of Golding's estate by one of the sureties on the bond of the administrator, and it also appeared that of this $225 McCall had only paid $50. The creditors of Goldlng's estate had brought suit against his administrator on the administrator's bond for $5,000, and the suit was settled by the payment of $2,500 by one of the sureties to the ordinary for the use of the creditors of the estate; this payment being in full settlement of the liability of the surety on the administrator's bond, and the sum thus paid was distributed to the creditors of the estate. McCall did not at that time receive any part of this sum on his claim against the estate, but, as above stated, was subsequently allowed to retain a portion of the amount covered by the duebill which he had given to the administrator as his pro rata share of the sum received by the creditors from thesurety of the administrator. The foregoing is a substantial statement of the facts. The case was submitted to the court without the intervention of a jury, and the judge found in favor of the plaintiff McCall and rendered judgment for $125 principal (half of the principal of the note sued on), $134 interest to date of judgment, and 8 per cent, interest on the $125 from date of judgment. The defendant filed a motion for a new trial on the general grounds, which was overruled, and she excepted.

The defenses relied upon in the court below and insisted upon in this court are as follows: (1) That the consideration of the note sued upon was not valid because it was a fraud upon the other creditors of the estate of W. T. Golding, and because a note based on such consideration is against public policy.

(2)...