Lassiter v. Bank of Dawson

• Citation: 11 S.E.2d 910,191 Ga. 208
• Decision Date: 19 November 1940
• Docket Number: 13419.
• Parties: LASSITER v. BANK OF DAWSON et al.
• Court: Supreme Court of Georgia

11 S.E.2d 910

191 Ga. 208

LASSITER v. BANK OF DAWSON et al.

No. 13419.

Supreme Court of Georgia

November 19, 1940

Syllabus by the Court.

1. The bill of exceptions is amendable by adding as defendants in error others who were parties in the trial court, and who were represented in that court by attorneys who acknowledged service of the bill of exceptions without a reservation to the effect that the acknowledgment would not apply to such parties.

2. Where a defendant in a suit for interpleader interposed general demurrers to the petition and to an answer and cross-action filed by other defendants, a judgment overruling both of such demurrers is such a judgment as may be reviewed by a direct bill of exceptions under the Code, § 6-701. The motion to amend the bill of exceptions as to parties as just indicated, is sustained. After such amendment the motion to dismiss the writ of error is without merit, and is overruled.

3. Under the terms of the will referred to in the petition for interpleader, the bequest in controversy was to vest unconditionally and in fee simple in a named brother of the testatrix upon his claiming such bequest within a stated period; otherwise the bequest would go to a designated church as alternative legatee. The petition alleged that the brother did claim the bequest within the time limited. Accordingly the title became vested unconditionally in the brother, and the bequest did not pass to the alternative legatee.

4. The Code, § 37-1503, declares that whenever a person shall be possessed of property or funds, or owes a debt or duty, to which more than one person shall lay claim of such a character as to render it doubtful or dangerous for the holder to act, he may apply to equity to compel the claimants to interplead. According to repeated decisions by this court referring to the principle as thus stated, the conflicting claims must be of such character as to justify a reasonable doubt or reasonable apprehension of danger in order that resort may be had to a court of equity.

(a) In the instant case the claims referred to above and the others set forth in the petition did not render it reasonably doubtful or dangerous for the petitioner to act and consequently the petition did not state a cause of action for the equitable relief of the interpleader.

(b) The court erred in overruling the general demurrers to the petition for interpleader, and to the response filed for the church asserting claim to the bequest as against the temporary administrator of the named brother of the testatrix.

The exceptions are to the overruling of demurrers filed by one defendant to a petition for interpleader as amended and to an answer and cross-action filed by other defendants. The Bank of Dawson, having in hand a balance of $8,000 which had been paid to it by the executor of Susie J. Talbot in conformity with the last will and testament of the latter, filed a suit against several persons named, praying that they be required to interplead with respect to their claims relating to such fund. The will of Susie J. Talbot, so far as here material provided as follows: 'Item 1. I will and bequeath to my brother, Will Talbot, the sum of ten thousand dollars ($10,000), to be paid to him one thousand dollars ($1000) each year until the entire bequest is paid, to be held in trust for him by the Bank of Dawson, Dawson, Georgia. In the event this bequest is not claimed in fourteen (14) years, I direct that it then be paid to the Dawson Methodist Church, of Dawson, Georgia. I direct that my executor deposit said sum in said bank. In the event that my brother, Will Talbot, shall claim this bequest, the said Bank of Dawson is authorized to pay the sum of one thousand dollars ($1000) annually, after the probate of my will in solemn form, until the total amount is paid out. Said bank to make payments upon the check of the said Will Talbot. In case my brother, Will Talbot, does not claim this bequest within fourteen (14) years, said bank shall be authorized to pay same to the Dawson Methodist Church of Dawson, Georgia, fourteen (14) years after such probate of my will, upon receipt from the local officers of said Dawson Methodist Church, who handle the finances of said church.'

The Bank of Dawson, in its petition for interpleader as amended, alleged substantially the following: The will containing the foregoing provision was executed on April 15, 1930. The testatrix, Miss Susie J. Talbot, died on April 25, 1935. The will was probated in common form in the court of ordinary of Terrell County in 1935, and in solemn form in 1938. On September 16, 1936, J. L. Murray, the nominated and qualified executor, deposited in the Bank of Dawson the sum of $10,000 'as directed in said will.' The bank accepted the deposit and placed it to the credit of William F. Talbot, the same person as Will Talbot, 'to to paid out in accordance with the terms of the will.' At the time the will was executed, and until after its probate in solemn form, Will Talbot was absent and his whereabouts were unknown; but in January, 1939, he 'appeared and claimed the property given to him in the will.' At that time the bank paid to him 'on his check' the sum of $1,000. Will Talbot was then over seventy years of age, and 'drank freely of intoxicating beverages.' In June, 1939, he filed a suit against petitioner, to recover the entire balance of the bequest This suit was afterwards settled and dismissed. In August, 1939, on petition of J. L. Murray and report of a commission finding that Will Talbot was a drunkard and should have a guardian, the ordinary of Terrell County appointed Fred L. Lassiter as guardian for him. In September, 1939, Lassiter, as such guardian, filed a suit against the bank to recover the entire bequest for the estate of his ward, which suit is still pending. After this suit was filed William F. Talbot died, and Lassiter is seeking 'to administer said estate without having been appointed, as administrator, and without having made bond as such, and is asking that said bank turn over all funds to him as such.' Lassiter 'is now the temporary administrator of the estate of William F. Talbot, deceased, and claims said estate.' The following are known to be 'blood kin' of Talbot: Miss Ida Carlton, Miss Willie Mae Kilpatrick, and M. C. Cummings. During his lifetime petitioner paid to Will Talbot $1,000 in the year 1939 and $1,000 in the year 1940. It now holds the remainder, $8,000, as a custodian and stakeholder, and desires that it shall be paid out only upon an order or decree of a court of equity. 'The petitioner is advised that the heirs named in this petition are claiming said estate. The petitioner has been advised that the Methodist Church, under its contingent inheritance, has consulted with an attorney as to its rights in the premises, and claims the estate. The petitioner shows that it has been reported to it that in William F. Talbot's lifetime he made, executed, and delivered a will bequeathing to Hon. J. H. Fletcher, ordinary of Terrell County, Georgia, his property. That he will probably claim said funds under the will made by William F. Talbot.' The claims of the various parties are in conflict. Petitioner is not in collusion with any of them, and has no interest except to see that the fund is paid to the proper person, and does not know to whom it should be paid. The claims are of such character as to render it doubtful and dangerous for petitioner to act without a decree of court. It prayed that it be protected in paying said fund, without constant litigation and insistent controversy, and that all parties claiming the fund be made defendants. The petition named as defendants: (1) Fred L. Lassiter as guardian for William F. Talbot; (2) Ida Carlton, Willie Mae Kilpatrick, and M. C. Cummings, heirs at law; (3) 'the Methodist Church of Dawson, J. P. Perry, chairman of the board of stewards;' (4) J. H. Fletcher. Other prayers were that the defendants be enjoined from proceeding against the Bank of Dawson in any manner except under this petition, that they be required to interplead as to their respective claims, and that plaintiff have all protection that can be extended by the court under such petition. The prayer for rule nisi referred to 'the Methodist Church, J. P. Perry, chairman,' etc., as last above quoted, but with respect to the church the prayer for process referred only to 'J. P. Perry, chairman of the board of stewards.' It does not appear that there was any effort to perfect service upon the church as such, or that it made any appearance by answer or otherwise, only the individuals composing the board of stewards having made any response in its behalf. The court issued a a temporary restraining order and rule nisi.

The response filed by J. P. Perry and others as members of the board of stewards was designated by them as an 'intervention.' In it they answered seriatim the various allegations of the petition, admitting some and denying others, but asserting claim to the fund in question. They later filed an amendment in which they alleged the following: On or before the appointment of Fred L. Lassiter as administrator of the estate of Will Talbot, J. H. Fletcher as ordinary, who is one of the defendants, had in his possession what purported to be a will of William F. Talbot in which J. H. Fletcher was named as executor and sole beneficiary. The existence of this will was known to both Fletcher and Lassiter at the time Lassiter applied for appointment as temporary administrator of the estate of Will Talbot, and the appointment of Lassiter was thus obtained by fraud, because (1) it was a fraud on his part to have himself appointed administrator, knowing that there was an outstanding will; (2) Fletcher as ordinary, knowing of the will,...