Hart v. Brown

• Decision Date: 15 April 1916
• Docket Number: (No. 369.)
• Citation: 88 S.E. 670,145 Ga. 140
• Parties: HART. v. BROWN.
• Court: Georgia Supreme Court

145 Ga. 140

88 S.E. 670

HART.

v.BROWN.

(No. 369.)

Supreme Court of Georgia.

April 15, 1916.

(Syllabus by the Court.)

Error from Superior Court, Taylor County; S. P. Gilbert, Judge.

Action by J. T. Hart, administrator, against L. B. Brown. Judgment for defendant, and plaintiff brings error. Affirmed.

J. T. Hart, as administrator de bonis non with the will annexed of F. Mathews, deceased, filed his petition against L. B. Brown, alleging, in substance, as follows: A certain house on land belonging to the estate of the testator is being torn down and removed by the defendant without legal right or authority. The defendant is insolvent and unable to answer to a judgment which might be obtained against him for damages. The removing of the house is also liable to cause a number of suits. The plaintiff is anxious to wind up the estate and be discharged. The damage from removing the house can hardly be estimated, under the peculiar circumstances of the case. The prayer was that the defendant be enjoined from trespassing on or in any way interfering with the property. The defendant answered that he could neither admit nor deny the allegation that the plaintiff was the administrator de bonis non with the will annexed of F. Mathews, but alleged that there was no ne-cessity for appointing such an administrator, as the estate had been fully administered. He admitted that he was tearing down the house, but denied that it belonged to the estate of Mathews, and averred that he himself was seised of it in fee simple. He denied insolvency or the necessity for an injunction. He pleaded estoppel against the plaintiff, on the ground that he bought the land from the executor of the residuary legatee under the will of the testator, and that this was done with the knowledge and acquiescence of the plaintiff. The will is sufficiently set out in the first headnote, except that item 10 was as follows:

"To my son, Otis F. Mathews, I hereby give and bequeath the remainder of my property—all of my property not otherwise conveyed by this will, both real and personal including lands, money, and all other personal or real property of which I am seized and possessed."

The case was submitted to the presiding judge without a jury, on an agreed statement of facts, in substance, as follows: The testator, F. Mathews, died on or about the 24th day of January, 1908, testate, and O. F. Mathews qualified as executor, took charge of the estate, and administered it until his death in July, 1913. Since his death the plaintiff has been appointed, and has qualified as administrator de bonis non with the will annexed, and brings this suit as such. The estate of the testator has been fully administered under the will, except as to the incomes and legacies mentioned in items 4 and 5. The income mentioned in item 4, to be derived from the railroad stock, is not involved in this case. Mrs. Hart, the surviving granddaughter of the two mentioned in the will, has received $4,0001 of the legacies mentioned in items 4 and 5. Prior to the death of the testator the I. C. Plant's Son bank failed, about 1904. At the time of the failure the testator had on deposit therein the sum of $3,288.75, of which $3,-000 was on [time] deposit, the balance being interest and general deposit Payments have been received from that bank or its receivers, aggregating $1,230.53. (Four of these payments, aggregating $1,156.54, were made during the lifetime of the testator, as appears from their dates.) Prior to the death of the testator the Exchange Bank also failed, in July, 1907. At the time of its failure the testator had on deposit in it the sum of $5,758.60, of which $5,500 was on time deposit, the balance being interest and general deposits. Certain amounts have been received from the receiver of that bank, aggregating $4,894.81. (As appears from their dates, two of these payments, aggregating $2,303.44, were made during the lifetime of the testator.) It was further agreed that the court should consider the will of the testator in its entirety, having special regard to whether the incomes and legacies mentioned in items 4 and 5 were specific or general. It was also agreed that the land in question formed a part of the estate of the testator at the time of his death, and descended to O. F. Mathews as residuary legatee under the will, and that the estate of the testator was worth $25,000 or more at the time of his death. The court revoked the restraining order which had previously been granted,...