Houston v. Pollard, 21267

• Citation: 217 Ga. 184,121 S.E.2d 629
• Decision Date: 08 September 1961
• Docket Number: No. 21267,21267
• Parties: G. L. HOUSTON, Executor, v. Virginia Manning POLLARD.
• Court: Georgia Supreme Court

Page 629

121 S.E.2d 629

217 Ga. 184

G. L. HOUSTON, Executor, v. Virginia Manning POLLARD.

No. 21267.

Supreme Court of Georgia.

Sept. 8, 1961.

Syllabus by the Court

For the reasons appearing in the opinion the trial judged erred in overruling the general demurrers of the defendant.

Mrs. Virginia Manning Pollard brought a petition against G. L. Houston, as executor of the will of W. C. Manning, who died on September 17, 1960. It was alleged: Under the original will of W. C. Manning, dated October 17, 1958, the petitioner was devised a described tract of land, being all of the land owned by W. C. Manning. This will by W. C. Manning was revoked by his marriage with Mrs. Lula Vercie Manning, and in a codicil republishing the will, executed on May 12, 1960, he struck the devise to the petitioner and gave the land to Mrs. Lula Vercie Manning. On October 17, 1958, the petitioner entered into an oral contract with W. C. Manning, her father, 'under the terms of which she agreed to furnish her father with money in the minimum amount of $50 per month, to be called for by him at such times and in such amounts as he desired to request; that arrangement to continue for and during his remaining years in life and as long as he could live; and the said W. C. Manning upon his part realizing that there was outstanding then a deed to secure debt in favor of the Federal Land Bank, securing a loan upon said property, and further realizing and recognizing that no one could determine how long a period of time these advances to him would have to continue or what amount would be required to be expended by your petitioner for his support, comfort and maintenance, agreed that he would execute and deliver to petitioner notes in the amount of $500 each which said notes were secured by a deed to secure debt upon the 67 acres tract of land in lot 334 in the 7th District of Worth County which said deed created a lien (subject to the Federal Land Bank's lien) for the $500 note executed the same date as the said security deed and for any additional notes or amounts which were to be advanced to him by your petitioner. And the said W. C. Manning further agreed at said time in said oral agreement and oral contract to make a will in which he would devise and bequeath the said 67 acre tract of land, and any and all equity and interest he might have therein at the time of his death to Mrs. Virginia Manning Pollard, your petitioner.' (Italics ours.) In pursuance of the contract, W. C. Manning on October 17, 1958, executed to the petitioner a note for $500 and a deed to secure debt, securing the note and securing the petitioner for any and all future advances which she might make to her father. The petitioner made the advances as required under the agreement, and on February 23, 1960, her father, realizing that he had exhausted the amount of the first note, made an additional note for $500. The petitioner fully complied with the terms of the oral agreement with her father by furnishing him with such funds as he requested of her until the time of his death, but her father breached his contract with her by the execution of the codicil to his will in which she was totally excluded. The contract entered into between the petitioner and her father was fair and just. At the time the contract was made the property was worth from $6,000 to $8,000, and there was outstanding a deed to secure debt in favor of the Federal Land Bank of Columbia, South Carolina, of approximately $2,500. 'The amount contemplated between petitioner and her father to be advanced yearly was $600 and considering the uncertainty of how long this would be required and the likelihood of further advances occasioned by ill health and the payment of last sickness and funeral expenses the said W. C. Manning realized that the probability was that at his death he would have a very small equity, if any at all in this tract of land.' (Italics ours.) Her father was 77 years of age at the time the contract was made and had a life expectancy of 5.85 years. The terms of the contract were fair, equitable, and just. It is the intention of the executor to sell the property of W. C. Manning for the purpose of paying debts, and to deliver the remainder of the sum realized from the sale of the property to the widow, Mrs. Lula Vercie Manning, as directed in the codicil of the will, and unless a court of equity restrain the executor from disposing of the land, the damage to the petitioner will be irreparable. She has no adequate remedy at law. The prayers were that the defendant be restrained from selling or conveying the property of W. C. Manning, and that upon the trial of the case the petitioner have a decree of court declaring her to be the owner of the described tract of land, subject to the lien of the Federal Land Bank, the payment of the funeral expenses, and the cost of administration.

The general demurrers of the defendant were overruled, and the exception is to this judgment.

Ford & Houston, Joe L. Houston, Sylvester, for plaintiff in error.

Robert B. Williamson, Sylvester, for defendant in error.

HEAD, Presiding Justice.

1. The petition in the present case nowhere alleges any consideration for the execution of a will by the deceased, W. C. Manning, wherein he would leave his estate to the petitioner. In paragraph 7, after alleging the contract and agreement between the parties as to the execution of a deed to secure debt and notes in connection therewith, it is stated: 'And the said W. C. Manning further agreed at said time in said oral agreement and oral contract to make a will in which he would devise and bequeath the said 67 acre tract of land, and any and all equity and interest he might have therein at the time of his death to Mrs. Virginia Manning Pollard, your petitioner.'

This is the sole allegation in the petition as to any agreement for the execution of a will by the deceased devising his property to the petitioner. It is not alleged that the consideration for the execution of a will by the deceased is the same consideration as that for the execution of the deed to secure debt, nor does such allegation otherwise show any consideration for the execution of the...