Greenfield v. Harvey

• Decision Date: 15 October 1940
• Docket Number: No. 13295.,13295.
• Citation: 11 S.E.2d 776
• Parties: GREENFIELD et al. v. HARVEY.
• Court: Georgia Supreme Court

11 S.E.2d 776

GREENFIELD et al.

v.HARVEY.

No. 13295.

Supreme Court of Georgia.

Oct. 15, 1940.

Error from Superior Court, Glynn County; Gordon Knox, Judge.

Suit by Lillie Harvey against W. H. Greenfield and others, executors of the estate of Jasper G. Harvey, deceased, to declare trust and marshal assets of the estate, and for injunction. To review a decree for plaintiff, defendants bring error.

Writ of error dismissed.

In a suit by a widow as legatee against the executors of the estate of her deceased husband, seeking to declare a trust and to marshal the assets of the estate, and for injunction, the judge, trying the.case by consent without a jury, after decision by this court on writ of error to a judgment refusing an injunction (Harvey v. Greenfield, 186 Ga. 192, 197 S.E. 276), rendered final decree in favor of the plaintiff. It was stated in the decree:

"The above-stated cause having been, by agreement of parties plaintiff and defendants, by proper stipulation in the record, submitted to the court, as court and jury, to determine the said case upon the pleadings and the evidence, and the court being of the opinion, after careful consideration of the said case and the evidence and the arguments and briefs of counsel for the plaintiff and defendants, that a proper construction of the will of the said deceased, Jasper G. Harvey, is that it was his intention to provide a home for his widow, the said plaintiff, during her life, she residing at said home, and remaining unmarried, free from any taxes, insurance, or repairs, to the said home, and to be paid her $15.00 per month on her living, during her lifetime, she remaining unmarried and residing in said home; and that the said 8th or 9th items of Mr. Harvey's will create an express trust in her favor, if not an express trust, then an implied trust, at all events a precatory trust, and that the said plaintiff is entitled to a judgment in her favor; and it further appearing to the court that there is now due to the said widow, nineteen (19) months payments at the rate of $15.00 per month or $285.00, and that there is now due for taxes on the said property the sum of $69.91, and for insurance $5.38; total $360.29:

"It is thereupon considered, ordered, adjudged, and decreed by the court, that the said plaintiff, Mrs. Lily Harvey, do have and recover of and from the said defendants, W. H. Greenfield and W. D. Harvey as executors of the will of the said Jasper G. Harvey, deceased, the said sum of $360.29 now due to her at this date, besides the further sum of $--as costs of court, to be taxed by the clerk of this court; and that this judgment is hereby declared to be a special lien upon and against the property left by said testator, and briefly described as follows, to wit: [describing various parcels of realty] * * *.

"It is further * * * decreed, that the said plaintiff do likewise have and recover * * * from the said defendants * * * and out of the said property the other and further sum of' $15.00 per month, for as long as the said plaintiff shall live and she remaining a widow and unmarried, residing in the said home place. And this is a declaratory judgment in her favor in said case. It is further * * * decreed, that the court retain jurisdiction of this case, to hear and consider any further petition, by the said plaintiff, in the way of amendment, for a judgment in her favor, to cover any future claim in the way of the necessary repairs to the said home place, or for taxes or insurance thereon, in the event that the said defendants fail and refuse or omit to make such necessary repairs, or to pay such taxes and insurance after the said plaintiff has thereunto requested the said defendants to make such necessary repairs, pay such taxes and insurance upon the said property; such request on her part being in writing, and they, the defendants, failing, omitting, and refusing to make such repairs, or to pay such taxes and insurance upon the said property, and being allowed a reasonable time to make such repairs or pay such taxes and insurance, after the said plaintiff might have requested them so to do."

The defendants excepted directly. It was stated in the bill of exceptions that it was agreed between the parties that the case should be submitted to the judge "to be heard and determined by him without the intervention of a jury, he to pass upon all questions of law and fact in connection with said case, with the right to the losing party to have an appeal, either by motion for new trial or by a direct bill of exceptions as to said losing party might seem proper, and that said judge then and there presiding, after hearing argument of counsel, rendered judgment in favor of the plaintiff * * * to which said judgment the defendants then and there excepted, and now except, and assign the same as error as being contrary to law." No approved brief of evidence was filed as part of the record in the case, or included in the bill of exceptions, or set forth by duly identified exhibit, or otherwise. The bill of exceptions specified as material part of the record to be transmitted to the reviewing court: "The agreed statement of facts signed by counsel for plaintiff and defendant, filed in said court on October 28, 1939." A transcript of the paper so specified was included in the record. It did not appear to have been approved and ordered filed as part of the record by the judge. After the case was placed on the calendar for argument in the Supreme Court and more than 20 days after service of the bill of exceptions, the plaintiffs in error offered to amend the bill of exceptions so that it should in part read as follows: "The defendants having been served and having filed an answer in said case, it was agreed between the parties that the same should be submitted to the * * judge of said court, to be heard and determined by him without the intervention of a jury, he to pass upon all questions of law and fact in connection with said case, with the right to the losing party to have an appeal, either by motion for new trial or by a direct bill of exceptions, as to said losing party might seem proper, said cause being submitted to the court upon an agreed statement of fact which involved only the question of the proper interpretation of the will of one Jasper G. Harvey; it being agreed between the parties that should the court construe said will as creating either an implied, expressed, or precatory trust in favor of the defendant in error upon all of...