Nelson v. Estill

• Court: Georgia Supreme Court
• Writing for the Court: BELL, Justice.
• Citation: Nelson v. Estill, 190 Ga. 235, 9 S.E.2d 73 (Ga. 1940)
• Decision Date: 15 May 1940
• Docket Number: 13130.
• Parties: NELSON v. ESTILL et al.

9 S.E.2d 73

190 Ga. 235

NELSON v. ESTILL et al.

No. 13130.

Supreme Court of Georgia

May 15, 1940

Syllabus by the Court.

1. A decree adversely affecting the interests of minors, even though it be entered by consent of their father as next friend, may, if induced by fraud, duress, or the like, be set aside at their instance in a proper proceeding, and for that purpose they may sue by their mother as next friend.

(a) A breach of trust on the part of the former next friend operating to the disadvantage of the minors and to the corresponding advantage of the opposite party or parties would constitute sufficient basis for such action, whether or not there was intentional fraud or coercion on the part of the latter.

(b) The petition to set aside the judgment stated a cause of action.

2. In such case, the statute of limitations would not begin to run against the minors until after the arrival at majority.

3. Allegations as to what a defendant knew and did, held not subject to special demurrer. The court did not err in overruling the demurrer, upon any ground therein taken.

Ernest J. Haar, of Savannah, for plaintiffs in error.

Fred B. Davis and Oliver & Oliver, all of Savannah, for defendants in error.

BELL Justice.

This was a suit by the minor children of Walter Estill, suing by their mother as next friend, to set aside a consent decree entered in a previous suit by the same plaintiffs through their father as next friend, after the decision therein by this court in Nelson v. Estill, 175 Ga. 526, 165 S.E. 820. Walter Estill was a son of J. H Estill, who died in 1907, leaving a will which was probated in November of that year. At the time of the testator's death, Walter Estill and Maria J. Estill were husband and wife, and they had a son, Edward Van Estill, who was about ten years old. Walter Estill and Maria J. Estill were later divorced, and each remarried, the second wife of Walter Estill being Catherine Frazier Estill. By his second marriage three children were born, namely, Edith Virginia Estill, Walter Estill, Jr., and Lloyd Estill. The litigation relates to the right of these children to share as beneficiaries under the will of their grandfather, J. H. Estill. In the eighth item of the will, J. H. Estill directed his executors to pay to the Citizens & Southern Bank one sixth of his estate, 'which it shall hold as trustee, upon the following uses and trusts, namely, to pay the income therefrom to my son Walter Estill during the term of his natural life, for the support of himself and the support and education of his children, and after his death said income to be applied to the support and education of his children, the principal to be equally divided between them when the youngest child attains the age of twenty-one years. In the event of the death of either of said children during the minority and without leaving issue, the share of the one so dying shall go to the survivor or survivors, children of a deceased child to represent the parent.' It appeared in the former litigation that on October 30, 1908, Walter Estill executed to Maria J. Estill, who was his wife at that time, an instrument directing the Citizens & Southern Bank, as trustee, thenceforth to pay unto her all moneys arising from the interest and share of Walter Estill, and his son Edward Van Estill, under the will of J. H. Estill. The terms of this instrument were approved by a decree of the superior court on December 8, 1908, and it was not until after this decree was entered that Walter Estill was divorced and remarried; so that the present plaintiffs were not in life at that time. On May 13, 1931, the present minor children of Walter Estill by his second marriage, suing by their father as next friend, filed a suit against Mrs. C. B. Nelson, formerly Maria J. Estill, Edward Van Estill, and the Citizens & Southern National Bank, formerly Citizens & Southern Bank, as trustee under the will of J. H. Estill, praying, among other things, that the order of December 8, 1908, be set aside and vacated, and that a decree be passed directing the trustee to pay to petitioners the income accruing under item 8 of the will of J. H. Estill, that reasonable attorneys' fees be awarded to counsel of record for their services in prosecuting the litigation, and that the trustees be permanently enjoined from paying to Mrs. C. B. Nelson any of the income arising under item 8 of the will; and for general relief. The court overruled a demurrer to the petition, and that judgment was affirmed by this court, the rulings stated in the headnotes being as follows:

'1. Properly construed in the light of the testamentary scheme evidenced by the will as a whole, a devise which gave 'to the Citizens' and Southern Bank of Savannah one sixth part (of the residuum of testator's estate), which it shall hold as trustee upon the following uses and trusts, namely, to pay the income therefrom to my son Walter Estill during the term of his natural life, for the support of himself and the support and education of his children, and after his death said income applied to the support and education of his children, the principal to be equally divided between them when the youngest child attains the age of twenty-one years,' conveyed title to the property to the named trustee in trust for the support of the named son for his life, with remainder in fee to his children. The trust is executory, and the bequest to his 'children' as a class opens to include any child or children which may be born to the testator's son.

'2. The decree of the superior court, rendered on December 8, 1908, which directed the trustee of the property referred to in the preceding headnote to pay the income therefrom to Maria J. Estill, instead of to Walter Estill, is without any effect whatever upon the petitioners in this case, under the terms of the will. The purpose and intent of the testator clearly was to provide for the support and education of all the children of Walter Estill. The will does not convey a present estate into his children until Walter Estill has died, and even after his death the title to the property remains in the Citizens' & Southern Bank until the youngest child of Walter Estill becomes of age. The trust was executory, not executed.

'3. The court did not err in overruling the demurrer to the petition.' Nelson v. Estill, supra.

Following that decision, the superior court entered a decree, reciting that it was entered by consent of the parties, except as to attorneys' fees, which decree disposed of the litigation in a manner which was inconsistent with the decision by this court and prejudicial to the plaintiffs, the terms of such decree being as follows:

'1. The Citizens and Southern National Bank, of Savannah, Georgia, trustee for the Walter Estill trust under the will of John Holbrook Estill, bearing date August 28, 1906, be and it is hereby authorized and directed to pay to Walter Estill, a son of testator, one half (1/2) of the net income (less the deduction provided in the 4th paragraph hereof) arising from the trust in the eighth item of the will of testator, for the support of himself, and the support and education of the lawful children of Walter Estill, whether born before or after the probate of the will of the testator, or at any time thereafter, except Edward Van Estill, and that the other one half (1/2) of the said net income be paid to the defendant, Mrs. C. B. Nelson, for the support of herself and her son Edward Van Estill; this being a final provision as to said income and the rights of the parties thereto.

'2. That upon the death of Walter Estill and the attainment of his or her majority by his youngest child, the corpus, covered by the said eighth item, shall be distributed as directed by the said eighth item heretofore construed by the courts.

'3. The trustee will pay the court costs out of the trust assets in his hands.

'4. It is further ordered, adjudged, and decreed, that the trustee be and it is hereby authorized and directed to pay from the corpus of the estate to Spence M. Grayson, H. Mercer Jordan, and Abrahams, Bouhan, Atkinson & Lawrence, attorneys for the plaintiffs, as attorneys' fees for prosecuting this action, the sum of two thousand ($2,000) dollars, to be charged as follows: $500 to be paid from the entire corpus of the estate and charged against the entire corpus; $1,500 to be paid from the corpus of the estate and charged against that share of the corpus which will be received by the plaintiffs and those coming within the class of the plaintiffs in this case.

'The part of the income of the estate to be paid to Mrs. C. B. Nelson, and Edward Van Estill, provided in par. 1 of this decree, shall not be diminished by reason of the payment of the $1,500 fee, but the income going to the plaintiffs (and any other children of their class) shall be reduced in a sum equivalent to the income from the said $1,500 so paid as attorneys' fees.

'Done in open court, at Savannah, Georgia, this 9th day of August, 1933.'

On January 12, 1939, the present suit was filed in behalf of the same minor children by the second marriage, by their mother as next friend, for the purpose of setting aside and vacating the foregoing 'consent' decree of August 9, 1933. It is this latter suit which forms the basis of the present writ of error. The defendants were Mrs. C. B. Nelson, formerly Maria J. Estill, Edward Van Estill, the Citizens & Southern National Bank, as trustee, and Walter Estill. The petition, after setting forth the relationship of the parties and the history of the litigation, including the decision and judgment of the Supreme Court in favor of the plaintiffs, alleged the following:

'9th. Mrs. C. B. Nelson (formerly Maria J. Estill) became infuriated upon...