Knight v. Wingate

• Decision Date: 16 March 1949
• Docket Number: 16566.
• Citation: 52 S.E.2d 604,205 Ga. 133
• Parties: KNIGHT v. WINGATE.
• Court: Georgia Supreme Court

52 S.E.2d 604

205 Ga. 133

KNIGHT v. WINGATE.

No. 16566.

Supreme Court of Georgia

March 16, 1949

Rehearing Denied March 28, 1949.

Syllabus by the Court.

Where Government bonds under the Second Liberty Bond Act, 31 U.S C.A. § 757c, were made payable to a named person 'or' another, the survivor is prima facie the owner of such bonds and in a contest with the representative of the estate of the deceased such survivor is entitled thereto in the absence of clear proof of some interest of the deceased therein other than as shown by the bonds.

M. C Knight, as administrator of the estate of P. C. Knight, brought an action in the Superior Court of Decatur County against Ellen K. Wingate and First State National Bank, alleging the following: P. C. Knight died on April 27, 1948, possessed of $12,000 in series 'E' Government bonds. Ellen K. Wingate was at that time living in the house with the deceased and his wife, who were her father and mother. After the death of P. C. Knight, the defendant Wingate wrongfully took possession of the said bonds, a part of which she has placed in a safety deposit box at the defendant bank. She has cashed some of the bonds and is endeavoring to convert others to her own use. She has threatened to dispose of the bonds and is claiming the proceeds thereof will be her own property as against the petitioner and other heirs of P. C. Knight. Unless enjoined she will convert the same into cash, and irreparable loss and damage to the estate will be sustained. The prayers were for process, injunction restraining the defendant Wingate from disposing of the bonds and that the defendant bank be restrained from permitting her to remove the said bonds from the safety deposit box, for the appointment of a receiver to take charge of the bonds, and for a decree awarding the bonds to the petitioner as administrator of the estate of P. C. Knight, and for general relief.

Ellen K. Wingate answered, admitting the allegations as to the death of P. C. Knight, but denying that he owned $12,000 worth of series 'E' Government savings bonds, and denying that she had taken possession, converted, or cashed any such bonds. She admitted that P. C. Knight, according to her information and belief, had during his lifetime purchased $5,000 worth of series 'E' United States bonds, all of which were made payable to 'P. C. Knight and his wife or to P. C. Knight or his wife,' that upon the death of P. C. Knight the said bonds became the property of his wife, who is the mother of both the petitioner and the defendant Wingate, that after the death of P. C. Knight his wife took the said bonds to the defendant bank, and that they were changed or converted into other bonds payable 'to her and/or' this defendant, and that in order to pay some of the expenses and indebtedness bonds in some amount have been cashed. Under the facts she is the sole owner of the series 'E' bonds now in her possession.

Upon the interlocutory hearing evidence was introduced which in substance shows the following: The petitioner testified that he is the son of P. C. Knight and Mary Knight, his wife. The heirs of P. C. Knight are Ellen Wingate, Alma Knight, Doris Knight, Billy Knight, Carlton Knight, and M. C. Knight. The petitioner lives about 50 to 60 steps from the home of P. C. Knight, who died as alleged in the petition. In January, 1948, he saw $12,000 worth of bonds in the possession of P. C. Knight. He kept them in a tin box under his bed and kept the box locked and carried the key, sometimes hanging it on a file in the room where he had some papers. The bonds were payable to P. C. Knight or Mrs. Mary K. Knight. He saw the bonds again on April 23, 1948, after the death of P. C. Knight, and they were still in the tin box under the bed. After the death of his father the house went to the defendant, Ellen Wingate, and the mother, Mary K. Knight, continued to live with Ellen. The defendant Wingate told the witness and his wife that she did not want either of them to come to her house to see the witness' mother, who died on November 26, 1948. When the witness' father died, the witness went to his mother to get money to pay the funeral expenses of his father, and she had it in a rag and gave it to him, $430, and he gave her back $30. The petitioner signed a bond as administrator in the amount of $22,000.

J. M. Jeter testified by affidavit: He lived near P. C. Knight and knew him. The deceased loaned him money and was a good friend. Just before his death the witness went to make arrangements to pay him, and the deceased said he had turned his affairs over to Marvin, the petitioner. The deceased said he had given $1,500 to Marvin to take care of his wife and that he had some bonds and cash in a box and had asked Marvin to take them after his death, cash them, and take care of his wife, and when she died to divide them among his heirs.

Mrs. Marvin Knight, the wife of the petitioner, testified that P. C. Knight came to her house in January or February, 1948, and had her add up his bonds. He would call out the numbers and she would put them down. They amounted to $12,000.

A daughter-in-law of P. C. Knight testified that she had children who were grandchildren of P. C. Knight and that her husband was dead, and that she saw the bonds on December 1, 1948. A Mr. Deer had them. He is a married man and is the boy friend of Ellen Wingate. The witness saw the bonds the next day in Ellen's lawyer's office. There was $4,075 in 'E' bonds and some more bonds she could not see. Since this litigation arose Ellen told her that, if she would stick to her, when she got the bonds she would divide them with her kids but not with Marvin and Carlton. She said the bonds were in two packages when Mr. Deer had them. She saw him looking at a $1,000 bond in the name of Mrs. Knight and Mrs. Wingate. They were payable to Mrs. Mamie Knight or Mrs. Ellen K. Wingate.

L. D. Allen testified: He was the stepfather of Carlton Knight, the son of Herman Knight. Herman was the son of P.C. Knight. The defendant Wingate told him that, if Carlton would go down there and live with her he would get his part, but the rest of them were not going to get any part of the bonds.

Carlton Knight testified: He lived with the defendant Wingate after his grandfather's death, and she told him that, if he stuck by her until his grandmother's death, he would get his share, but she told him in a café the other night that nobody would get those bonds.

The bank cashier testified to the handling of the bonds which had been issued to P. C. Knight and Mrs. Mary K. Knight.

The defendant Wingate testified: She was the daughter of P. C. Knight. At his death his home became her property, and her mother lived with her. She did forbid the petitioner from coming to her house, because he would not help her with her mother, but she called them on the night her mother died. He mother did not want them there, and that was the reason her mother made the bonds to her so she could get them and take care of her mother. She took care of her mother, and her mother stuck by her and would not go and stay with any of the others. She made a list of the bonds, which were payable to Mrs. Mamie Knight or Ellen Wingate except one which was payable to James E. Wingate or Ellen K. Wingate, which was bought by the defendant's mother and made payable to the defendant and her son. Her mother cashed one of the original bonds in order to purchase this one. The witness had cashed some of the bonds. They were her mother's and hers, and at her mother's death they belonged to her. All the bonds she had cashed and those now on hand had come from the bonds her father had in the little tin box under the bed.

Counsel for the petitioner sought on cross-examination to require the defendant Wingate to state whether or not for a good period she had been drunk a great deal of the time, and the court, on objection of the defendant's counsel, refused to permit the witness to answer. Counsel for the petitioner stated that he expected to prove by the witness that she took charge of her mother and the house in which the bonds were located, and that she became habitually drunk and lived with a married man, and that she took the bonds and cashed some of them and made trips to Florida and wasted the money.

The court denied an interlocutory injunction and refused to appoint a receiver, and the petitioner excepted, assigning error on that judgment and upon the ruling excluding the testimony just referred to.

Custer & Kirbo, of Bainbridge, for plaintiff in error.

Conger & Conger, of Bainbridge, for defendant in error.

DUCKWORTH, Chief Justice (after stating the foregoing facts.)

All the bonds in question were issued pursuant to Federal law and regulations issued by the Secretary of the Treasury, as follows: 31 U.S. C.A. § 757c, which provides in part that 'The Secretary of the Treasury, with the approval of the President, is authorized to issue, from time to time, through the Postal Service or otherwise, United States savings bonds and United States Treasury savings certificates * * * and shall be issued in such manner and subject to such terms and conditions consistent with subsections (b), (c) and (d) hereof, and including any restrictions on their transfer, as the Secretary of the Treasury may from time to time prescribe'; and Treasury Department circular 530, which provides that, 'If either co-owner dies without the bond having been presented and surrendered for payment or authorized reissue, the surviving co-owner will be recognized as the sole and absolute owner of the bond and payment or reissue, as though the bond were registered in his name alone, will be made only to such survivor.' The bonds contain a recital that they are made subject to such...