Miller v. Jones
| Citation | 71 S.E. 910,136 Ga. 428 |
| Parties | MILLER et al. v. JONES et al. |
| Decision Date | 17 June 1911 |
| Court | Georgia Supreme Court |
(Syllabus by the Court.)
Upon the call of the appearance docket, the judge may in his discretion allow counsel for the defendant a reasonable time thereafter, and during the term, to demur and answer.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 172-178, 464-469; Dec. Dig. 85, 199.*]
The petition was not subject to demurrer on the ground of multifariousness.
[Ed. Note.—For other cases, see Action, Cent. Dig. § 549; Dec. Dig. § 38.*]
(Additional Syllabus by Editorial Staff.)
It is presumed that a testator intends to dispose of his whole estate and does not intend to die intestate as to any part of his property, and this presumption is only overcome where the intention to do otherwise is plain and unambiguous or is necessarily implied.
[Ed. Note.—For other cases, see Wills, Cent. Dig. § 965; Dec. Dig. § 449.*]
Error from Superior Court, Early County; W. C. Worrill, Judge.
Action by Mrs. A. L. Miller and another against R. L. Jones, as executor of the will of W. D. Jones, Sr., and others. From ajudgment sustaining a demurrer to the petition, plaintiffs bring error. Reversed.
Mrs. A. L. Miller (formerly Jones) and Nannie Jones brought an action against R. L. Jones, as executor of the will of W. D. Jones, Sr., deceased, T. P. Jones, Sr., T. P. Jones, Jr., W. W. Beard, W. B. Hattaway, and C. J. Rambo. The substance of the petition was as follows: W. D. Jones, Sr., died October 14, 1905, leaving a will, as follows:
The will was probated in solemn form on the first Tuesday in December, 1905, and R. L. Jones qualified as executor. For 18 years prior to the death of the testator, he and T. F. Jones, Sr. (Frank) conducted as partners a farming business on the Dennis place referred to in the will; each of the partners owning an undivided half interest in the land constituting such place, and of the personalty thereon used in such business. The testator acted as overseer or manager of the plantation at an agreed salary of $300 per year; and T. F. Jones, Sr., kept the accounts and books of the business, sold the produce made thereon, collected the proceeds of the sales, and managed the financial affairs generally of the business. A running account existed and continued between such partners, without a settlement, during the 18 years next preceding the death of the testator, at which time T. F. Jones, Sr., as a surviving partner, was indebted to the testator in a large amount. Within three years after the death of the testator and the probate of his will, W. D. Jones sold and conveyed all of his interest in all the property devised and bequeathed to him under the will to W. W. Beard. Subsequently, on October 31, 1907, W. W. Beard, T. F. Jones, Sr., and two of the older set of children mentioned in the will, viz., Emma Beard and T. F. Jones, Jr., under an agreement, made a division in kind of the Dennis place, and in accordance therewith executed deeds whereby each of such parties took the portion of the place so allotted. In November, 1907, T. F. Jones, Jr., sold and conveyed to T. F. Jones, Sr., all interest which the former had in the Dennis place under the will, and under the agreement above referred to. On February 14, 1908, T. F. Jones, Sr., sold and conveyed the portion of the Dennis place which had been conveyed to him by T. F. Jones, Jr., and certain produce from such place, to C. J. Ram-bo and W. B. Hattaway. All of such par-ties so dealing with the interest of the testator in the Dennis place went into possession of the portion thereof which they had obtained under such conveyances, and thereafter received the rents and profits thereof, and all of them had full notice, at the time of taking possession, of the rights of the plaintiffs under the will, and all of such parties confederated together and conspired with T. F. Jones, Sr., in the manner above indicated, to defeat the rights of the plaintiffs in and to such of the net income, rents, issues, and profits arising from the Dennis place, as plaintiffs were, under the terms of the will, entitled to receive and enjoy for their maintenance, etc., during the period of three years from the death of the testator. At the time of the death of the testator, his individual debts aggregated $680.24, which debts were by his will made a first charge upon the income arising from his entire estate. At the time of his death and for some time prior thereto, the testator, in partnership with his son, R. L. Jones, conducted a public cotton-ginning business on the home place mentioned in the will, the debts of which partnership, at the death of the testator, amounted to $4,119.96, or other large sum. On October 19, 1907, the ginning business was completely destroyed by fire, and R. L. Jones by way of compromise collected $2,012.50 as insurance thereon, half of which amount was assets belonging to the estate of the testator, and as such passed into the hands of R. 11 Jones, as executor, subject to the indebtedness of the last-mentioned partnership.
In January, 1907, the dwelling on the home place mentioned in the will was alsoburned by fire, and R. L. Jones, as executor, collected on an insurance policy taken out upon such dwelling for the protection and benefit of himself and plaintiffs the sum of $1,597, which amount the plaintiffs charge, upon information and belief, was used by the executor in paying off debts owing by the estate of testator, and the last-mentioned partnership, instead of holding plaintiffs' two-thirds interest therein in trust for them and selling the personal property belonging to the estate of the testator for the purpose of paying the debts for which it was liable. The executor never called upon T. P. Jones, Sr., to account for any of the personalty, consisting of live stock, farming implements, etc., used in connection with the business conducted by the testator and T. F. Jones, Sr., on the Dennis place, and in which the testator owned an undivided half interest, but allowed such personalty to pass into the hands of W. W. Beard, Emma Beard, and T. F. Jones, Jr., C. J. Rambo, and W. B. Hattaway, as well as to remain in the hands of T. F. Jones, Sr., as long as he kept control of the Dennis place, which personalty such parties converted to their own individual use and placed the same beyond the power of the executor to sell for the purpose of paying the debts due by the testator. By reason of the failure of R. L. Jones, as executor, to sell a sufficient amount of the personal property of the estate to pay off its debts, and of his failure to pay his individual indebtedness as a member of the partnership in the ginning business that existed between him and the testator, as well as by reason of the fact that such executor permitted certain described lands constituting a part of the home place, which had been specifically devised to the plaintiffs and R. L. Jones, to be sold at sheriff's sale on April 2, 1908, and on May 6, 1908, under various executions for stated amounts in favor of different named plaintiffs against R. L. Jones, some of which were against him as executor and others against him individually and as executor, the plaintiffs' interests in the home place have been sacrificed. The value of the portions of the land of the home place sold under such executions was $5,800 or other large sum, and they were sold at forced sales, permitted and encouraged by the executor and the devisees of the Dennis place and their successors in interest, in the spring of 1908 during a financial panic, and were grossly sacrificed in order to pay the debts of the estate, which inured to the benefit of the devisees under the will of the testator's interest in the Dennis place, and entirely deprived plaintiffs of their interest in the lands so sold, and defeated the scheme of their father, the testator, as expressed in his will, which was to divide his land into two equal parts; one, consisting of the home place, to go to the three younger children, namely, the plaintiffs and R. L.. Jones, and the other, consisting of his interest in the Dennis place, to go to his three older children, viz., Emma Beard, W. D. Jones, Jr., and T. F. Jones, Jr. The executor, R. L. Jones, has collected and received, as money belonging to the...
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