Powell v. McKinney
| Decision Date | 11 August 1921 |
| Docket Number | 2360. |
| Citation | 108 S.E. 231,151 Ga. 803 |
| Parties | POWELL ET AL. v. MCKINNEY ET AL. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
"As a general rule, when there is a devise to a class, the members of the class are to be ascertained upon the death of the testator, as the will takes effect on that date." The devise in the present instance was to a class of children of the life tenant. The father of the plaintiffs was in life at the death of the testatrix, when the will became operative, but died prior to the period of distribution. At his death his interest passed to his heirs. Applying these principles, it follows that the petition was not subject to the ground of demurrer that the plaintiffs had no interest in the estate because, their father having died before the period of distribution, his interest was divested.
The heirs of the decedent, who had no knowledge that the application for letters of administration was pending, were proper parties to institute and maintain an equitable proceeding to set aside and vacate the judgment appointing the administrator.
The petition was not subject to demurrer on the ground that it was barred by the statute of limitations. It does not affirmatively appear on the face of the petition that the cause of action is barred by the statute of limitations, and therefore the petition is not subject to demurrer on that ground, but such defense is a matter for plea.
The petition is not subject to demurrer on the ground that there is a misjoinder of parties, nor is it subject to demurrer on the ground that there is a misjoinder of causes of action.
The petition was not subject to demurrer on the ground that the action is prematurely brought, because it affirmatively appears from the petition that there are no tangible assets of any kind in existence calling for the functions of an administrator de bonis non on the estate of Chapman Powell deceased.
The petition is not subject to demurrer on the ground that, the petition showing that there was an administrator on the estate of H. Chapman Powell, the right to the custody and possession of any property, interests, or assets of such estate was in such legal representative, and petitioners were not entitled to proceed against the executor of the estate of Mrs. M. A. J. Powell.
The petition set out a cause of action entitling the plaintiffs to equitable relief, for which they had no adequate remedy at law. The court erred in sustaining the general demurrer and dismissing the petition.
Error from Superior Court, Fulton County; Geo. L. Bell, Judge.
Suit by H. C. Powell and others against C. D. McKinney administrator, and others. Judgment dismissing the petition on demurrer, and plaintiffs bring error. Reversed.
Mrs Mary J. Rucker bequeathed to her sister, Martha A. J. Powell $20,000 "during her natural life, she to enjoy the income from the same," with the further direction that "at her death said amount, with accumulations, if any, to be equally divided between her children." Mrs. Powell, the life tenant, died in June, 1917, subsequently to the death of Mrs. Rucker. She had had four children. Three of them survived her. The fourth child, H. Chapman Powell, survived the testatrix, but predeceased his mother, leaving two children, the plaintiffs in error. H. Chapman Powell had been divorced from his wife; the latter having married again and removed with their two children to the state of Virginia. At a time when the two children of H. Chapman Powell were still minors, without notice to them, and without their knowledge or consent, Frank A. Powell procured from the court of ordinary of Hall county letters of administration on the estate of H. Chapman Powell, and later an order authorizing the sale of a 5/73 interest in certain described property in Fulton county, Ga., under an application reciting:
The interest of the estate of H. Chapman Powell in the property was appraised to be of the value of $3,500, and on the sale was bought by Mrs. M. A. J. Powell, the mother of the deceased, H. Chapman Powell, and of his administrator, for the sum of $500, which amount was credited on an indebtedness which she claimed was due to her.
H. Chapman Powell and Travis Leigh Powell (the latter being a minor and suing through his mother as next friend), the two children of H. Chapman Powell, the deceased son of Mrs. M. A. J. Powell, filed a petition against McKinney, administrator with the will annexed of Mrs. Rucker, Frank A. Powell, individually and as administrator de bonis non of the estate of H. Chapman Powell, deceased, and John M. Hulsey, as executor of the estate of Mrs. Powell. In addition to the facts above set forth the petition alleges that a one-fourth remainder interest in the bequest above mentioned became vested in the father of petitioners, H. Chapman Powell, and that the same passed and descended to them as his sole heirs at law; also that they are entitled to share as residuary legatees in the distribution of the estate of Mrs. Rucker, and that the value of their interest in said estate amounts to $8,000; that the application for letters of administration on the estate of their father, made by Frank A. Powell above referred to, was fraudulently made for the purpose of divesting petitioners of their interest in the bequest under the will of Mrs. Rucker; that the same was void, because it recited that the applicant was the next of kin (brother) of the deceased, when the applicant knew that petitioners, the children of the deceased, were the next of kin and were in life, because said application did not show the consent of the other brothers and sisters of the deceased, and because petitioners were at the time minors, and no notice was given to them of said application; that the sale of said property was fraudulent and void, because it was in effect a sale of a one-third interest in the property by the administrator to himself, and nothing was paid by Mrs. M. A. J. Powell for the interest of H. Chapman Powell in said property; that she was at the time a very old and infirm person, dominated by her son, Frank A. Powell, and later executed her will devising all her property to her three children, including Frank A. Powell; that said sale was void, because the land was misdescribed, in that it was not located in a block bounded by Broad street; that said sale was void, because there was no title in the said H. Chapman Powell to the real estate mentioned, the same being in the representative of the estate of Mrs. Mary J. Rucker; that the said legacy was not invested in said property, had never been assented to by the administrator of her estate, and had never been set apart; that petitioners did not know of the above-mentioned sale until about the time of the filing of a certain petition by the administrator upon Mrs. Rucker's estate, seeking construction and direction; that petitioners filed pleadings in said matter, setting up their relationship to H. Chapman Powell; that their addresses were known to or could have been ascertained by Frank A. Powell; that in spite of these facts Frank A. Powell filed in the court of ordinary of Hall county an application for letters of administration de bonis non upon the estate of H. Chapman Powell, making in said application the following averment:
"H. Chapman Powell, resident of said county, departed this life on the 20th day of January, 1915, leaving your petitioner as one of his next of kin, and also leaving possibly an estate of real and personal property, worth the sum of not known at this time; and petitioner has administered on said estate, but there is a possible part thereof not administered, and there is an indebtedness against said estate, and at the time of his death the said H. Chapman Powell was entirely intestate, as your petitioner believes and herein alleges."
Petitioners allege that this application was likewise fraudulent and void, because Frank A. Powell knew at the time it was made that he was not one of the next of kin of H. Chapman Powell; because it did not set forth the existence of any estate to be administered upon, but only a possibility of such, and that a possibility cannot be administered upon; because it undertakes to set up an indebtedness against said estate, without showing to whom the indebtedness was due, and without showing that Frank A. Powell was a creditor. The petition recites that Frank A. Powell and others have filed against McKinney, administrator with the will annexed of Mrs. Rucker, a petition for settlement, and that the same would shortly thereafter be heard. It also alleges that Hulsey, as administrator of the estate of Mrs. M. A. J. Powell, is claiming for that estate the interest in the estate of Mrs. Rucker to which petitioners, as the sole heirs of H. Chapman Powell, are entitled.
The prayers are that the petition for settlement of the estate of Mrs. Rucker, above referred to, and distribution of the estate, particularly the portion vested in H. Chapman Powell be stayed by injunction; that McKinney, as administrator of Mrs. Rucker, be enjoined from paying over to Hulsey, as executor of Mrs. Powell, or to Frank A. Powell, individually or as administrator de bonis non of H. Chapman Powell, any portion of the Rucker estate to which petitioners lay claim; that the appointments of Frank A. Powell as administrator and as administrator de bonis...
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