Lewis v. Patterson

• Decision Date: 05 December 1940
• Docket Number: 13425.
• Citation: 12 S.E.2d 593,191 Ga. 348
• Parties: LEWIS et al. v. PATTERSON et al.
• Court: Georgia Supreme Court

12 S.E.2d 593

191 Ga. 348

LEWIS et al. v. PATTERSON et al.

No. 13425.

Supreme Court of Georgia

December 5, 1940

Syllabus by the Court.

1. In the instant case, in which the plaintiffs sought to impress described land with a resulting trust in their favor by reason of the fact that choses in action bequeathed to them and their mother jointly had been used by their mother in part payment for the land, which she purchased in her own name and had conveyed to her as sole grantee, the allegations were sufficient, as against a general demurrer, to show that the executor had assented to the legacy as to all of the legatees.

2. If the executor assented to the legacy, it passed from his control, and in that capacity he was no longer accountable therefor to the legatees. Where one of several legatees who were equally interested in a legacy as tenants in common used the legacy in part payment for land purchased in her name, the other legatees could ratify her act in so disposing of it, and sue for a proportionate interest in the land purchased.

3. In such case the statute of limitations would not begin to run against minors during their minority, nor could they be charged with laches during such period. The petition did not show that the plaintiffs were barred by laches.

4. The testimony of the sole witness who testified for the plaintiffs was not of such nature that the jury were bound to accept it as true; and therefore the verdict in favor of the plaintiffs was not demanded as a matter of law.

5. The purpose of the suit being to impress a resulting trust in favor of the plaintiffs upon land, as against the right of another who had acquired the same by purchase, the court erred in charging the jury that 'A will of a deceased person, when duly probated and recorded, is notice to the world of the title to the property granted by the will.'

6. The excerpts from the charge of the court set forth in division 6 of the opinion were subject to the criticism that they excluded the question of notice and good faith, and one of them was subject to the criticism that it tended to confuse the jury.

7. Another charge was subject to the criticism that it intimated an opinion that the plaintiffs did have an interest in the land. Whether it was cured by other instructions need not be determined, since the judgment refusing a new trial must be reversed for other reasons.

8. The defendants could not complain of a charge where, although it was erroneous, the error was in their favor.

9. There is no substantial merit in other assignments of error on excerpts from the charge, or on omissions to charge.

10. Ground 18 of the motion for a new trial relates to a matter which is not likely to occur on another trial, and the question raised therein need not be decided. For reasons indicated in divisions 5 and 6 of the opinion, the judge erred in overruling the motion for a new trial.

This case involves an alleged resulting trust. Mary Francis Patterson and Pattye Patterson, suing by Christie Patterson Jr., as next friend, together with Margaret Lois Patterson Brown and Sarah Patterson Garrett, filed a suit in equity against Miss Caro Lewis, Mrs. Lamar Lewis Gammon, and Emmett G. McKenzie as executrices and executor of the will of J. F. Lewis. General and special demurrers to the petition and to the petition as amended were filed. They were overruled, and the defendants excepted pendente lite. On the trial a verdict in favor of the plaintiffs was rendered. A motion for new trial was overruled, and defendants excepted, assigning error also on the exceptions pendente lite.

The plaintiffs alleged that their grandfather, J. M. Patterson, died on September 1, 1925, leaving a will in which he bequeathed all of his notes and accounts to Mrs. C. L. Patterson and her children by her husband, C. L. Patterson, a son of the testator; that the plaintiffs are four of the eight children of Mr. and Mrs. C. L. Patterson, who were living at the time of the death of the testator; that another child, living at that time, later died; and that the plaintiffs were among the heirs at law. Items 4 and 5 of the will of J. M. Patterson were as follows: 'Item 4. I hereby give, bequeath, and devise to the present wife of my son, C. L. Patterson, and to their children, born and to be born any and all of my money, notes, and accounts and any and all of my personal property of which I may die seized and possessed, after paying all my debts [and] the expenses of my last illness and burial by my said executor hereinafter named, hereby giving him absolutely authority to sell any such personal property that I may own at that date, for the purpose of paying my said debts as aforesaid. Item 5. I hereby constitute and appoint Henry T. Reddick for sole executor of this my last will and testament.' The petition further alleged: At the time of the death of J. M. Patterson he was seized and possessed of a promissory note for $3,000, executed by D. L. Vickers, dated July 9, 1925, and due July 1, 1927, payable to J. M. Patterson, and at the same time D. L. Vickers was indebted to J. M. Patterson in the further sum of $1,000 on open account. In a second count, added by amendment, the plaintiff alleged that this latter indebtedness was due upon an additional promissory note, thus varying the claim as to the basis of this indebtedness. The purpose of the suit was to impress described land with a resulting trust in favor of the plaintiffs, based upon their interest in these choses in action. To this end they alleged that their mother purchased the land from Vickers for $6,000, paying $2,000 in cash and surrendering to him these choses in action, or acquitting him of liability thereon, in payment of the remaining $4,000 of the purchase money; that on the same day on which their mother received a deed from Vickers, in which she was named as sole grantee, she obtained a loan of $3,500 from the Citizens Bank of Valdosta, and by deed conveyed the land to the bank for the purpose of securing such loan. The debt was not paid at maturity, and the land was sold under power of sale contained in the security deed; J. F. Lewis, the president of the bank, becoming the purchaser in his individual capacity. J. F. Lewis was president of the bank at the time Mrs. Patterson obtained the loan, and represented the bank in the transaction; that at that time the bank, by and through Lewis as its duly authorized officer, had full knowledge of the transaction between Mrs. Patterson and Vickers, and of the plaintiff's interest in the choses in action so used by their mother as part payment of the purchase money, or had sufficient knowledge to put it on inquiry. Similar allegations were made as to knowledge or notice on the part of Lewis as an individual at the time he purchased the land at the sale by the bank under the power of sale. Lewis having died, the suit was brought against the defendants as his executrices and executor.

In each count of the petition as amended the plaintiffs alleged that 'By virtue of said will [of J. M. Patterson] the said Mrs. C. L. Patterson and her said children became seized' of the choses in action as above described, each of them being vested with a stated undivided interest therein.' The petition alleged that the will was duly probated and admitted to record in Brooks County of which J. M. Patterson was a resident at the time of his death. The deed from Vickers to Mrs. Patterson, and the security deed from Mrs. Patterson to the bank, were executed on January 13, 1927, and the deed from the bank to Lewis, as executed and delivered in pursuance of the power of sale, was dated November 4, 1930. The petition as amended alleged the ages of the children as follows: Plaintiffs herein are the four youngest of said children, Sarah Patterson Garrett having attained her majority on January 4, 1935, Margaret Lois Patterson Brown having reached her majority on March 11, 1937, Mary Frances Patterson having become of age on May 24, 1939, and Pattye Patterson being still a minor. The suit was filed on November 1, 1938. The jury returned a verdict in favor of the plaintiffs, including $300 as mesne profits. The questions raised by the writ of error sued out by the defendants will sufficiently appear in the opinion.

Geo. E. Simpson and Franklin & Eberhardt, all of Valdosta, for plaintiffs in error.

Langdale, Smith & Tillman, of Valdosta, for defendants in error.

BELL Justice.

1. Only the general grounds of the demurrer were argued in this court, and only three contentions based thereon are presented for our consideration. It is our opinion that all of them are without merit. The first contention is that the petition as amended does not show that the executor of J. M. Patterson assented to the legacy on which the plaintiffs predicated their alleged cause of action. It appears from the petition that J. M. Patterson, the testator, died on September 1, 1925, and that his will was duly probated. The date of probate, however, does not appear, nor was it alleged that either H. T. Reddick, who was nominated in the will, ever qualified as executor, or that any other person was appointed as administrator with the will annexed. Similarly, there was no express averment of an executor's assent. It did appear from the evidence that C. L. Patterson, son of the testator and father of the plaintiffs, was appointed and qualified as administrator with the will annexed, on November 2, 1925, after refusal of Reddick to serve; but in considering the demurrers we are confined to the facts as they are stated in the petition.

The Code declares: 'Every person having possession of a will shall file the same with the ordinary of the county having jurisdiction; and on his failure to do so, the ordinary may attach for...