McGahee v. McGahee

• Decision Date: 17 June 1948
• Docket Number: 16190.
• Citation: 48 S.E.2d 675,204 Ga. 91
• Parties: McGAHEE et al. v. McGAHEE.
• Court: Georgia Supreme Court

48 S.E.2d 675

204 Ga. 91

McGAHEE et al. v. McGAHEE.

No. 16190.

Supreme Court of Georgia

June 17, 1948

Motions for Rehearing Denied July 16, 1948.

Syllabus by the Court.

1. The possession and control of property devised after the will is admitted to record and the representative qualifies is sufficient, nothing else appearing, to show assent by implication. Assent, either express or implied, converts the inchoate title of the legatee into legal title which may be the subject-matter of a fraudulent transfer.

2. A court of equity has jurisdiction to vacate a judgment obtained by fraud.

3. The allegations of the petition, as amended, can not reasonably be construed as an attack upon the judgment upon the ground that the award was excessive. Not being a person actually concerned in the legal administration of the assets of the estate of the deceased, such attack is not open to her. As shown by our statement of facts, the present attack upon the validity of the judgment is solely upon the ground of fraud.

Based upon the ground of cruel treatment, Mrs. Louise P. McGahee brought a suit against Carl L. McGahee for divorce and also alimony for herself and their three minor children. In her petition it was alleged that the defendant owned two described parcels of valuable real estate in College Park Georgia, from which he receives a monthly rental of not less than $225. In an amendment to the petition it was further alleged: That the defendant was a son of Luther L. McGahee who died testate on September 6, 1947, and his first wife Mrs. Lucy Johnston McGahee, was the second wife of Luther L. McGahee, and Rebecca Grace McGahee was their minor daughter. Luther L. McGahee's will had been admitted to record in Fulton County, Georgia, and Mrs. Lucy Johnston McGahee was the executrix of his estate. The will devised to the defendant the two parcels of real estate described in her petition. They were valued at $15,000. The remainder of the testator's estate, valued at $85,000, was devised to Mrs. Lucy Johnston McGahee and her daughter, Rebecca Grace McGahee. It was further alleged in the amendment that Mrs. McGahee, for the benefit of herself and minor daughter, applied for a year's support out of the estate of the deceased on October 10, 1947, and that the appraisers set apart the entire estate to them. The return of the appraisers was made the judgment of the court of ordinary at the November term, 1947. The application for year's support was a plan and scheme between the defendant husband and Mrs. McGahee to place defendant's property beyond the reach of the plaintiff's claim for alimony. The defendant consented and agreed to the application and the award made by the appraisers, cooperated in that proceeding by filing no objections to the return, and by so doing it was his intention and purpose to place his interest in the estate of his father beyond the reach of the plaintiff's and her children's claim for support and maintenance, and Mrs. McGahee, acting for herself and minor daughter, had reasonable ground to suspect that such was his intention and purpose. At the time the application for year's support was filed by Mrs. McGahee the plaintiff and her husband were living separate and apart and he was wilfully failing to support his family. It was further alleged that at the time the defendant received the real estate devised to him by his father's will, and at the time it was transferred to Mrs. McGahee and her minor daughter by the year's support proceeding he owed debts in excess of $500, as well as the amount due the plaintiff and her children for support and maintenance. The year's support award divested him of all his property, except wearing apparel. The defendant since receiving said devise has not only failed to pay his debts, but has only partially supported plaintiff and their children. Since the award of the real estate devised to the defendant was effectuated without consideration, and with the intent and for the purpose stated, the judgment of the court of ordinary, in so far as it affects this property, should be set aside. It was further alleged that the defendant and Mrs. McGahee acted in bad faith in causing the real estate devised to the defendant to be transferred by the year's support proceeding and for that reason she is entitled to recover the expenses of litigation in having the award set aside.

The prayers of the amendment were: (1) That it be allowed; (2) that Mrs. McGahee and her daughter be made parties; (3) that the judgment of the court of ordinary, in so far as it affects the property devised the defendant, be set aside; (4) that she have a special lien on the defendant's property for the amount which may be awarded as alimony; (5) that Mrs. McGahee be enjoined from disposing of the property in dispute until a final determination of the issues in this case; (6) that she have judgment for the expenses of this litigation against the defendant and Mrs. McGahee, and (7) for general relief.

There was no demurrer to the original petition, but all three of the defendants demurred to the amendment upon several grounds. The court overruled all of the demurrers and the exception here is to that judgment.

Calhoun & Calhoun, of Atlanta, for plaintiffs in error.

Houston White, of Atlanta, for defendant in error.

CANDLER, Justice (after stating the foregoing facts).

In the brief for the plaintiffs in error it is stated that the writ of error presents for decision these issues:

'First: Where there is no allegation of assent by an executor to a devise and no allegations of dominion or control of property devised, is the title of the devisee ever perfected to the extent that the property may be 'transferred'?

'Second: May the judgment of the court of ordinary on a subject exclusively within the jurisdiction of such court be set aside in an equitable action in the superior court where there is no attack on the jurisdiction of the court of ordinary or the regularity of its proceedings, and where there is no direct attack on the validity of the judgment rendered by the court of ordinary?

'Third: May the judgment of the court of ordinary in awarding a year's support to a widow be collaterally attacked in equity upon the ground of fraud?

'Fourth: May such judgment of the court of ordinary be set aside upon the allegation of fraud by one who failed to interpose a caveat or opposition to the award before the final judgment of the court of ordinary?

'Fifth: Where there is no allegation by one seeking to set aside the judgment of the court of ordinary awarding a year's support upon the grounds of fraud to the effect that the award was excessive, and where it does not appear that any objection has been made either in the court of ordinary or elsewhere that the said award was excessive, may the award be set aside in equity where on its face it appears that the court of ordinary has jurisdiction, and that the proceedings therein were regular and the citation was duly published?

'Sixth: Do the superior courts have the authority to determine the excessiveness or non-excessiveness of an award of year's support by the court of ordinary, (a purely statutory proceeding) in the absence of any objection before the award and in the absence of any allegation of excessiveness in the action instituted in the superior court?'

Since no other questions which may have been raised by the demurrers have been argued or insisted upon here, we will confine our consideration of the case to the issues stated above.

1. We deal first with the question of the defendant husband's interest in the land devised to him by his father's will. It is strongly urged that no interest in the real estate here involved passed to the defendant legatee which could be the subject matter of a fraudulent transfer. To this we do not agree as we think the petition as amended sufficiently alleged, as against general demurrer, that the defendant's inchoate title had become legal title by assent. It has been frequently held by this court that assent to a legacy places title in the devisee and is generally irrevocable. Watkins v. Gilmore, 121 Ga. 488, 49 S.E. 598; Whatley v. Musselwhite, 189 Ga. 91, 5 S.E.2d 227; Cull v. Cull, 39 Ga.App. 164, 146 S.E. 559. Assent may be expressed or presumed from conduct. Code, § 113-802. We shall not repeat the allegations of the petition as amended as they are fully set out in our statement of facts, but suffice it to say they were sufficient to allege that the defendant husband received his legacy (the property in controversy); that he owned it, and was receiving a monthly rental from it. Such was a sufficient allegation that he was in possession and control of the property devised to him. In 1849 this court in Jordan v. Thornton, 7 Ga. 517, 520, said: 'Assent to a legacy is necessary to enable a legatee to sue at law for his legacy. It is not necessary to show an express assent; it may be implied from the facts and circumstances. The assent, it is true, must be clear and unambiguous. The possession of the property willed, does make out a clear case of assent, by implication.' And in the rather recent case of Lewis v. Patterson, 191 Ga. 348, 353, 12 S.E.2d 593, 597, it was held: 'Since there is a presumption that executors will perform their duties and will thus take care of estates entrusted to them [Wilson v. Aldenderfer, 183 Ga. 760, 189 S.E. 907], where nothing else appears, the assent of an executor to a legacy may be presumed or implied from possession of the property by the legatee.' To the same effect see:Parker v. Chambers, 24 Ga. 518(...