Morris v. Johnstone
| Decision Date | 16 April 1931 |
| Docket Number | 7981. |
| Citation | 158 S.E. 308,172 Ga. 598 |
| Parties | MORRIS et al. v. JOHNSTONE et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Administrator occupies position of highest trust to heirs and must exercise good faith; administrator cannot promote own personal interest to injury of heirs.
An administrator occupies a position of the highest trust and confidence to heirs at law, and is required to act in entire good faith in performing the duties of the trust. He must exercise the utmost good faith in his administration of the estate of his intestate; and he is not allowed to promote his own personal interest to the injury of the heirs at law.
Question whether action was barred by limitations is one of law, where only question of time is involved; where fraud and excuses for delay in discovering fraud are involved, question whether action is barred by limitations is mixed question of law and fact for jury.
If no facts are involved but the simple one of length of time which elapsed between the accrual of the action and the institution of the suit, the question whether the action was barred is one of law; but where there are facts involving fraud and excuses for delay in discovering the same, the question is one of mixed law and fact, and is one for determination by the jury under proper instructions from the court.
Silence between persons in trust relationship, when they ought to speak or failure to disclose what ought to be disclosed, is "fraud."
Where persons sustain toward another a relation of trust and confidence, their silence when they ought to speak, or their failure to disclose what they ought to disclose, is as much a fraud in law as an actual affirmative false representation.
Limitations barring suit against administrators guilty of fraud involving moral turpitude runs only from time of discovery of fraud (Civ. Code 1910, § 4380).
If administrators have been guilty of fraud involving moral turpitude by which a plaintiff has been debarred from her action, the period of limitation should run only from the time of the discovery of the fraud.
Petition to set aside order discharging administrators and for accounting alleging fraudulent concealment and sale of assets by administrators stated case of moral fraud; to prevent bar of limitations against administrators by reason of moral fraud, there must be reasonable diligence in discovering fraud; mere ignorance of fraud, which by use of ordinary diligence could have been discovered in due time, will not suspend operation of statute of limitation (Civ. Code 1910, § 4380).
The allegations of the petition make a case of moral fraud; but in cases of such fraud there must be reasonable diligence on the part of the plaintiff to discover the same. The mere ignorance of such fraud which by the use of ordinary diligence could have been discovered in due time will not suspend the operation of the statute of limitation.
Limitations applicable to suit to set aside order discharging administrators guilty of moral fraud is twenty-year period provided for actions on bonds or other instruments under seal (Civ. Code 1910, § 4359).
The statute of limitations applicable to the present action is the one which provides that actions upon bonds or other instruments under seal shall be brought within twenty years after the right of action shall accrue.
Where administrators fraudulently represented estate was in condition for distribution, action by heirs to set aside order discharging administrators would not be barred if brought within twenty years from time of last representation (Civ. Code 1910, § § 4359, 4380).
Where the administrators at various times and in divers ways during said period treated the trust as continuing, and the estate as not being in shape for distribution among the heirs at law, the statute of limitations would not run against the heirs at law if they brought their action within twenty years from the time whenthe administrators last represented to them that the estate was not in condition for distribution, and treated their trust as still subsisting and continuing.
Judgment of court of ordinary discharging administrators may be impeached in court of ordinary for irregularity, or in superior court for fraud; party seeking to set aside judgment of court of ordinary discharging administrators need not move to set aside judgment in court of ordinary (Civ. Code 1910, § 4091).
A judgment of the court of ordinary discharging administrators may be impeached in that court for irregularity, or in the superior court for fraud. The party seeking such relief is not compelled to move to set aside the judgment in the court of ordinary.
Error from Superior Court, De Kalb County; John B. Hutcheson Judge.
Equitable petition by Mrs. Annie C. Johnstone and others against C. R Morris and others. Judgment for plaintiffs, and defendants bring error.
Affirmed.
Knight & Patterson, of Atlanta, for plaintiffs in error.
Austin & Boykin and Slaton & Hopkins, all of Atlanta, and Weekes & Candler, of Decatur, for defendants in error.
Mrs Annie C. Johnstone, in behalf of herself and such other heirs at law of Charles Minor Morris, deceased, as might come in and be made parties thereto, filed in De Kalb superior court on February 11, 1930, her equitable petition against Charles H. Morris, Lucius M. Morris, and the National Surety Company, in which she alleged that Charles Minor Morris died in De Kalb county, Ga., on October 6, 1902, leaving as his surviving heirs his widow, five named sons, and six named daughters, petitioner being one of the daughters. In her petition she makes other allegations which appear in the opinion hereinafter. She prayed that the judgment of the ordinary discharging the defendants as administrators be set aside; that the defendant be required to make a fair, full, and complete accounting and settlement of said estate; that the court adjudge the true amount due from the estate and the administrators thereof to her as an heir at law of the deceased; and that she have all other, further, meet, and equitable relief. The administrators demurred to the petition, upon the grounds, among others: (1) That it did not set up a cause of action; (2) that it shows on its face such laches as to forever bar the plaintiff from the relief prayed; (3) that petitioner is barred by the statute of limitations as against defendants, in that the petition alleges a cause of action, if any, which arose on July 8, 1905, whereas the suit was filed February 11, 1930. On July 19, 1930, the court overruled the demurrer to the petition; and to that judgment the administrators excepted.
The question for decision in this case is whether the plaintiff was barred by the statute of limitations when she instituted the present suit. It is conceded by counsel for the administrators that the applicable statute on this question is section 4359 of the Civil Code of 1910, which provides that, "Actions upon bonds or other instruments under seal shall be brought within twenty years after the right of action accrues." The plaintiff sues to recover from the administrators the sum of $11,615, which she alleges was due by them to her on her distributive share in the estate of her deceased father on July 8, 1905, with interest from said date. So if no facts appear in the record which will toll the same, petitioner's cause of action was barred under the above statute at the time her suit was instituted. But petitioner insists that the statute of limitations should be tolled by reason of acts of fraud perpetrated upon her by the administrators. So the question arises: Does the petition set out acts of fraud perpetrated by the administrators upon petitioner, which would entitle her to have the statute of limitations tolled? The allegations of the petition make a case of gross fraud perpetrated by the administrators upon petitioner. The administrators were appointed on December 1 1902, and on that date they qualified as such, and gave bond with the National Surety Company as their surety. They continued in office until March 7, 1927, when they were discharged. The defendants made no complete inventory of the estate of their intestate which came into their hands. They filed with the ordinary an inventory of realty of the deceased in De Kalb county, consisting of two tracts of land of the value of $20,000, and of realty of the deceased in Fulton county of the value of $129,300. The only personalty of the deceased inventoried by them was $2,000 in solvent notes and accounts, and $18,000 in doubtful notesand accounts. They failed to inventory two valuable stocks of merchandise owned by the intestate at the time of his death and located in two stores on Decatur street in Atlanta, which he operated at the time of his death. These stocks of merchandise were of the value of $10,000 or more. They made no inventory of certain live stock and vehicles owned and used by the deceased at the time of his death in connection with said stores and at his home, of the value of $800 or more. They made no inventory or return of the cash of the deceased on hand and in bank at the time of his death. They failed to embrace in the inventory of the realty of the deceased a tract of land in Fulton county, owned by the deceased at the time of his death, containing 10.13 acres. On May 18, 1903, they sold this tract of land to the Chattahoochee Terminal Railway for a cash consideration of $12,156. They made no return of the proceeds of this sale, and never accounted therefor. In 1903 the administrators sold certain realty of the deceased for $112,956. In 1904 they sold other land of the deceased for $15,250. On July 8, 1905, they sold another tract for $25,500. When this last sale was made the defendants had in...
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