McHenry v. McHenry

• Decision Date: 26 September 1921
• Docket Number: 2200.
• Citation: 108 S.E. 522,152 Ga. 105
• Parties: MCHENRY v. MCHENRY ET AL.
• Court: Georgia Supreme Court

108 S.E. 522

152 Ga. 105

MCHENRY v. MCHENRY ET AL.

No. 2200.

Supreme Court of Georgia

September 26, 1921

Syllabus by the Court.

Under the allegations in the petition it appears that both of the defendants had such an interest in the litigation as to render them proper and necessary parties to the proceeding for equitable relief; and, as substantial relief was prayed against one of the defendants residing in the county where the suit was brought, the court of that county had jurisdiction also of the codefendant.

The court below properly construed the instrument, which is the basis of the defendant's claim of right and interest in the property in controversy, to be a deed.

Under the facts of the case the life tenants were estopped from denying that the instrument referred to was effective to convey the interest sought to be set up and established.

The other grounds of the demurrer were properly overruled.

"The natural increase of the property belongs to the tenant for life. Any extraordinary accumulation of the corpus--such as issue of new stock upon the share of an incorporated or joint-stock company--attaches to the corpus and goes with it to the remainderman." Civ. Code 1910, § 3667. In applying this statute to the evidence in the case it is held that what is known as the Massachusetts rule upon this subject prevails in this state; and while the trial judge, to whom the entire case was referred upon the trial without the intervention of a jury, sought to apply this rule, he erred in the material ruling of holding that a decree in a case in the Supreme Court of New York, to which the present plaintiffs were not parties, was a final determination of the character of numerous items in the statement of the property constituting the estate in which the plaintiffs here claim a remainder interest. The character of the items referred to should have been determined by the trial judge under the law and the evidence in the case, and the court erred in holding that the decision of the Supreme Court of New York was a conclusive adjudication as to the items making up the account, as the plaintiffs in the instant case were not parties to that case; and, moreover, it does not appear from this record that the decree or judgment referred to as conclusive was introduced in evidence, and therefore properly before the court for consideration.

As the case, under the foregoing ruling, is remanded for a new trial, in case the evidence upon the next trial fails to show that Mrs. W. S. McHenry was appointed administratrix of W. S McHenry, then she cannot be proceeded against as the administratrix of her deceased husband, and the suit can only proceed against her upon the other allegations of her being the widow and the sole heir of W. S. McHenry, together with the allegations of her having taken charge of the property.

Error from Superior Court, Morgan County; J. B. Park, Judge.

Action by Z. H. McHenry and another against Mrs. W. S. McHenry and others. From an adverse judgment, the named defendant brings error. Reversed.

The plaintiffs, Zoe Harriotte McHenry and Marion Louise Hickey (formerly McHenry), who are the only children of John G McHenry, the defendants in error in this court, brought a petition against John G. McHenry, of Morgan county, and Mrs W. S. McHenry, of Floyd county, this state. By amendment John G. McHenry was made a party defendant both in his individual capacity and as the surviving administrator of the estate of Mrs. Marion McHenry Bozeman, and Mrs. W. S. McHenry was made a party defendant both in her individual capacity and as the personal representative of the estate of W. S. McHenry. Petitioners sought to have their rights as remaindermen in certain stock ascertained and declared. The character of this stock and the source and origin of plaintiffs' claim of title are also set forth in the petition. Plaintiffs sought injunctive relief to restrain the defendants from selling, transferring, or disposing in any manner of the stock described in the petition, or altering its status. In an amendment the plaintiffs further prayed that the rights of petitioners be ascertained and declared in the assets received by W. S. McHenry and J. G. McHenry from the estate of Marion McHenry Bozeman and from the committee of her property, the New York Trust Company, and in certain other property involved in the transaction. There was a prayer for injunction and receiver, and also a prayer for general relief.

It is alleged in the petition that John G. McHenry is the surviving administrator of the estate of Mrs. Marion Bozeman, deceased; that he and W. S. McHenry, the husband of Mrs. W. S. McHenry, were appointed and qualified as such administrators in 1918; that W. S. McHenry died intestate thereafter, in April, 1919, without descendants, leaving the defendant Mrs. W. S. McHenry his sole heir at law; that Mrs. McHenry as such widow and sole heir at law had taken possession of all the estate of W. S. McHenry without administration; that Mrs. Marion Bozeman, who before her marriage was Marion McHenry, the sister of John G. and W. S. McHenry, in the year 1886 obtained, from the grandmother of the three, certain shares of stock in a corporation of the state of Alabama, then known as Elyton Land Company, the same owning the lands on which the city of Birmingham was afterwards largely built; that "dissatisfaction existing in the family thereabout, the same was adjusted and settled by an agreement respecting the stock, which was embodied in a certain deed of conveyance of said stock, whereby the rights therein both of their grandmother, Mrs. Eliza Stokes, and said Marion McHenry, John G. and W. S. McHenry, and their children were fixed and declared." This deed reads as follows:

"Georgia, Morgan County. Know all men by these presents, that I, Marion McHenry, of said county and state, for and in consideration of the natural love and affection I have for my brothers, William S. McHenry and John G. McHenry, Jr., both of the county and state aforesaid, do hereby give, grant, and convey to them in severalty, and not as joint tenants, twelve and a half shares of the stock of Elyton Land Company of the state of Alabama, now standing in my name on the stock of said company, the same having been given and transferred to me by my grandmother, Eliza Stokes, of said county of Morgan and state of Georgia, with the understanding that one-third part of all the dividends declared on said stock should be paid to the said Eliza Stokes as long as she may live, and no longer. And I hereby declare that in making this conveyance, the right of said Eliza Stokes to receive the one-third of said dividends during her life is secured and to be respected; and should I die before my said grandmother, her right to one-third of the dividends on said stock shall not be impaired. I convey hereby to each of my said brothers, William S. and John G., Jr., six and one-fourth shares of the stock of said company provided I die without leaving a child or children living at my death to receive one-third part of the said six and one-fourth shares so given, as to reduce each brother's part to four and a fraction shares, and the other equal part to the amount last mentioned to become the property of whomsoever by law would be entitled as my heir or heirs in fee. But should I die leaving no such child or children living, who would be entitled to inherit the said one-third part of said twelve and a half shares of said stock, then the whole of said stock or shares is hereby conveyed in equal part to my said brothers separately for life, and to such child or children as he may leave living at his death to take his share in remainder in fee simple. Should either of my said brothers die leaving no child or children at his death to take his part of said shares in remainder, then the survivor of my said brothers to take the parts of both whatever these amount to, with remainder over to such child or children as the survivor may have living at his death in fee. But in making this conveyance it is agreed by the said Marion McHenry and her said two brothers that she hereby reserves to herself the full and absolute right to receive, use, and appropriate all dividends that may be declared during her life upon the twelve and a half shares of said stock, in the same manner as she has heretofore done, that is, allowing one-third of said dividends to be paid to the said Eliza Stokes and the said Marion receiving two-thirds so long as her said grandmother may live, and afterwards the entire dividends to the exclusion of all persons.

"In witness whereof after making the erasures in line one on the second page, and in the interlineation on said page in line eight and thirteen, I have hereunto set my hand and seal this 11 day of December, 1886." "Marion McHenry (Seal)" Executed in the presence of F. C. Foster, Joshua Hill, Thos. B. Baldwin, Ordinary Morgan Co., Ga. Recorded Dec. 11, 1886, C. W. C. W. Baldwin, Clerk."

The original deed, it is alleged, went into the hands of W. S McHenry; and plaintiffs pray that the said McHenry be required to produce the same in court at the trial of the case. Plaintiffs contend that by the terms of this deed, after the death of Mrs. Eliza Stokes, which occurred in the year 1888, Mrs. Marion Bozeman was to have the dividends from the stock during her life and in the event she died without children, as she did on the 27th day of September, 1917, the stock was to pass to John G. and W. S. McHenry for their lives, and should either die leaving no child or children, then the survivor was to take the whole for life, with remainder over to such child or children in fee as such survivor might have living at his death; and they further contend that, John G. McHenry having...