Perkins v. First Nat. Bank of Atlanta, 22886
| Decision Date | 31 May 1965 |
| Docket Number | No. 22886,22886 |
| Citation | 221 Ga. 82,143 S.E.2d 474 |
| Parties | Travis Thrasher PERKINS v. FIRST NATIONAL BANK OF ATLANTA, Administrator, et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. Where two defendants file separate demurrers each upon ground that the petition sets forth no cause of action against the demurrant, the sufficiency of the petition to meet the demurrers of both defendants depends upon whether it set forth a cause of action to which each is a necessary or proper party.
2, 3. Where a petition shows a testamentary creation of a life estate with remainder over to the plaintiff, the assent to the devise and bequest of the life estate on the part of the testator's administratrix cum testamento annexo, which inured to the benefit of the remainderman, the death of the life tenant, and the retention of the assets of the remainder estate by the executor of the life tenant, the petition sets forth a cause for the recovery of such assets.
4. An action in the nature of an accounting lies to recover personal property limited over by way of remainder.
5. Where the executor of a life tenant retains the assets of the remainderman's estate and proposes to distribute such assets as the property of the life tenant and according to directions given in the life tenant's will, a remainderman may obtain an injunction to restrain such distribution.
6. Where a petition does not show upon its face that the cause therein set forth was barred, either by the statute of limitation or by laches, as to all of the relief sought, for this reason alone, if not for others, the court did not err in overruling these grounds.
7. Where a general demurrer to a petition is sustained with leave to amend and an amendment is allowed within the time required by the judge's order, the question of the petition's sufficiency is opened for a fresh adjudication.
8. All parties to a conspiracy to defraud are properly named parties to a suit brought to expose and defeat the fraudulent design of the conspiracy.
9. Where a ground of demurrer that the petition fails to set forth a cause for the recovery of damages is sustained and the petition does not undertake to set out any right to recover damages, the ruling is erroneous but harmless.
Travis Thrasher Perkins instituted an equitable action in the Fulton Superior Court against Harmon Barton Perkins, Luther B. Bridges, executor of Mrs. Frances Travis Perkins, both of Fulton County, and Mrs. Opal Perkins Martin, a resident of the State of Tennessee. The petition alleged the present case was a renewal of a case formerly pending between the same parties dismissed on December 3, 1959; that on September 17, 1936, Alonza (Alonzo) Harmon Perkins died leaving a will which was duly probated in solemn form; that in the will the plaintiff was named executor; that he was a native of California serving in the Navy; that he and Frances Travis Perkins agreed if he would renounce his appointment as executor and permit her to apply as administratrix cum testamento annexo she would faithfully perform the terms and conditions of the will; that the plaintiff renounced his appointment and Mrs. Perkins was appointed administratrix; that in applying for administratrix Mrs. Perkins fraudulently represented to the court of ordinary that the estate consisted of property of a probable value of $1,000 when in fact the value was in excess of $20,000; that the value was well known to Mrs. Perkins and Harmon Perkins; that the estate consisted of certain described valuable parcels of real property and personal property and cash in excess of $30,000; that Alonza Perkins' will left Opal Perkins Martin $5.00; and bequeathed and devised an estate for life in all his property to Mrs. Perkins with remainder to the plaintiff and his brother, Harmon Perkins; that as administratrix cum testamento annexo Mrs. Perkins assented to the devise of a life estate in all the property by entering into possession, collecting the rents and profits and converting the same to her own use; that Harmon Perkins and Mrs. Perkins, as part of a scheme to defraud the plaintiff and deprive him of his remainder interest, conspired and colluded together by filing a petition for leave to sell certain real estate for the ostensible purpose of liquidating the estate's indebtedness although the estate was not indebted; pursuant to such application, certain described property was sold and the proceeds were not deposited to account of the estate but were appropriated by Harmon Perkins and Mrs. Perkins to their own use and deposited in the personal account of Mrs. Perkins; that such acts were in furtherance of the scheme and device to defraud the plaintiff and deprive him of his remainder interest in the property sold.
The petition further alleged: that Alonza Perkins' estate is now unrepresented by virtue of the recent death of Mrs. Perkins who executed a will probated in common form under which Luther B. Bridges qualified as executor; that the will attempted to make testamentary disposition of property contrary to Alonza Perkins' will who gave only a life estate to that property to Mrs. Perkins with remainder over to the plaintiff and Harmon Perkins; that substantially all the funds on deposit in Mrs. Perkins' name are the property of the estate of Alonza Perkins, which has not been fully administered and wound up and should be administered as part of said estate; that Mrs. Perkins' will provides these funds should be used to pay the expenses of administration of her estate, which is part and parcel of the scheme to defraud the plaintiff; that Bridges, as executor, unless restrained and enjoined, will proceed to administer the estate of Mrs. Perkins and dispose of its assets which are lawfully part of Alonza Perkins' estate, to the irreparable loss and damage of the plaintiff; that Bridges, as executor, is acting without bond and Harmon Perkins, the principal beneficiary under Mrs. Perkins' will, is insolvent; that the estates of Alonza Perkins and Mrs. Perkins have been commingled and intermingled, pursuant to the plan to defraud the plaintiff, so that the same are indistinguishable and a receiver should be appointed to administer both estates and render an accounting.
The prayers were: that the plaintiff have judgment for his distributive share of the estate of Alonza Perkins against the defendants; that Bridges, as executor, be restrained and enjoined from proceeding with the administration of the estate of Mrs. Perkins; that the defendants be restrained and enjoined from removing the contents of any safety deposit boxes belonging to Alonza Perkins or Mrs. Perkins; that a receiver be appointed to administer the two estates.
Before the time to file defensive pleadings expired, the defendant Harmon Barton Perkins departed this life and the First National Bank of Atlanta, as his administrator, was made a party in his stead. The First National Bank filed a general demurrer and special demurrers. The grounds of the general demurrer were: the petition does not set forth a cause of action against this defendant; the petition on its face, shows that the plaintiff is barred by the statute of limitation from proceeding against this defendant; the petition shows, on its face, that the plaintiff is barred from proceeding against this defendant, in that the plaintiff is barred by the doctrine of laches because of the long delay in the institution of this action after the alleged acts complained of occurred. Luther B. Bridges, as executor of the estate of Mrs Perkins, made an oral motion to dismiss the petition for failure to set forth a causes of action as to him. The trial judge on June 1, 1964, entered an order dismissing the petition, therein granting the plaintiff 20 days to amend the same.
On June 15, 1964, the plaintiff amended the petition by adding certain paragraphs and a prayer reading, respectively, as follows: that the plaintiff was on active duty prior to 1945 and since that time he resided in California; that he loved and trusted his mother (Mrs. Perkins) and visited her on occasions until her death in 1958; that the plaintiff trusted his mother and since she had a life estate he had no right to his father's estate until her death; that on the many occasions he made inquiry concerning the assets of the estate he was informed by his mother that the estate was in good condition, that it was building up, money in the bank was increasing and the estate was making money and upon her death there would be increased assets for the plaintiff and his brother Harmon; that the plaintiff was ignorant of the mismanagement of the estate and concealment of the truth was he relied on the good faith of his mother; that it was not until her death in 1958 that he discovered she was guilty of acts of fraud and concealment; that by the exercise of ordinary diligence the plaintiff could not discover the fraud; that the acts of Mrs. Perkins and Harmon Perkins show a fraudulent scheme and impediment which prevented an earlier ascertainment of the fraudulent transactions; that Mrs. Perkins committed fraud in selling land for payment of debts when there were sufficient funds to pay any debts without selling the land; that these facts were concealed from the plaintiff until after the death of Mrs. Perkins; that the plaintiff seeks relief within a reasonable time after discovering the true facts; that Mrs. Perkins, in depositing funds in her own account, the corpus of which belonged in part to the plaintiff, maintained a mutual or trust account for the use and benefit of the plaintiff and Harmon Perkins which assets were in effect maintained in trust for the use and benefit after her death of tenants in common (the plaintiff and Harmon Perkins); that it is necessary for equity to take jurisdiction in order to protect all the parties concerned and to avoid a multiplicity of suits. The prayer was: that Bridges, as executor of...
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