Raines v. Shipley
| Decision Date | 12 May 1945 |
| Docket Number | 15158,15159. |
| Citation | 34 S.E.2d 281,199 Ga. 316 |
| Parties | RAINES et al. v. SHIPLEY. SHIPLEY v. RAINES et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The former judgment of this court did not by inference decide that all the contentions set forth in the plaintiff's petition were good, but the effect of the judgment was only to hold that it set forth a cause of action as against general demurrer, and that the judge did not err in overruling the same.
2. The agreement attached to the petition as Exhibit B did not operate to constitute a copartnership between the signers thereof, but merely enlarged the powers of those who had been named executors under the will, so that they could operate the property belonging to the estate and create debts in so doing for the purpose of discharging from the net proceeds the indebtedness owing by the estate.
3. Under this agreement, all funds coming into the hands of the executors from undevised property, together with all net proceeds earned in the operation of the property belonging to the estate, should have been applied to the payment of debts so far as may have been necessary for such purpose, although the plaintiff as remainderman would not have any rights in any surplus arising from such profits.
4. A large portion of the profits not having been applied to the payment of debts, but certain property in which the plaintiff had a remainder interest having been sold and thus applied she is entitled to an accounting for her proportionate part of the funds thus derived, in accordance with the agreed statement of facts signed by all devisees including the life tenant and the plaintiff remainderman.
5. The will not having contemplated a sale of the personal property located on the farms, for the purpose of division, and the agreement not having authorized such a procedure, such farm personalty, including the change in specifics and additions thereof accruing under the signed power authorizing such purchases from profits, remains the property of the devisees including the share in which the plaintiff held a remainder interest.
6. The court did not err in holding Augusta Griggs Raines and J. W Duskin liable for the proportionate part due the plaintiff of interest due by the makers of a note endorsed by the testatrix, which note was paid by the executors and for which they were subsequently repaid by such makers, who, however did not pay interest for the period of time that the executors held the note.
7. The court did not err in construing the will to mean that the share of the estate going to the life tenant was charged with a support to the plaintiff remainderman so long as the life tenant lived, nor, in view of the agreed statement of facts, did the court err in entering judgment against the life tenant for the amount of this support as found by the jury.
This is a petition for accounting by Mrs. Nancy Griggs Shipley against the executors of the estate of Mrs. Theodosia Stewart Griggs, in which she also sought a personal judgment, and in which she joined the one remaining devisee under the will. In the former appearance of this case in this court, Raines v. Shipley, 197 Ga. 448, 29 S.E.2d 588, [34 S.E.2d 283] Page 284
the sale of the personal property on the Randolph County land other than that used in the operation and replenishment of the same; the amount received from the sale of the timber from the Randolph County land, and the amount received from the equity above the mortgage on the Terrell County land. The sum of these last three named items represents the proceeds from the sale of real and personal property in which the plaintiff had a remainder interest, and which she contends was erroneously applied. The agreed statement of facts also set forth an agreement as to the proportionate value of Hollingsworth's life estate and the plaintiff's remainder estate, it being stipulated in effect that, as between Hollingsworth, the life tenant, and Mrs. Shipley, the remainderman, Hollingsworth's interest amounted to 12/28 and Mrs. Shipley's interest amounted to 16/28. As already indicated, the failure to fully apply the proceeds of the above five items of rents, profits, and undevised property to the payment of the above three stated amounts of debts and expenses, and the actual application of the proceeds derived from the sale of the above three named real and personal properties in which the plaintiff held a remainder interest, present one of the major grounds of controversy.
For such further reference as may be necessary, the agreed statement of facts and the decree are set forth in full as follows:
'The parties in the above stated case agree: (1) That Mrs. Theodosia S. Griggs executed her will on the 1st day of May, 1937, and that a copy of same is attached to plaintiff's petition, marked exhibit 'A;' that the testatrix died December 7th, 1940, and her will was probated in solemn form at the February term, 1941, of the court of ordinary of Terrell County, Georgia; that on February 3d, 1941, letters testamentary were issued to E. W. Hollingsworth, Gussie G. Raines, And J. W. Duskin, the executors named in said will.
'(2) That Edgar Hollingsworth, Theodosia Hollingsworth Duskin, Augusta Griggs Raines, and Nancy Stewart Griggs, the legatees named in the will of Mrs. Theodosia S. Griggs, are the same persons as E. W. Hollingsworth, Gussie G. Raines, Theodosia H. Duskin, and Nancy Griggs Shipley; that Jack Duskin, one of the executors named in said will, is the same person as J. W. Duskin; that E. W. Hollingsworth is a son-in-law of the testatrix, having married Vernon Griggs, daughter of the testatrix, who is now deceased; that Theodosia H. Duskin, the wife of J. W. Duskin, is the daughter of E. W. Hollingsworth and the granddaughter of the testatrix; that Gussie G. Raines is the daughter of the testatrix; that Nancy Griggs Shipley is the granddaughter of the testatrix, and a stepdaughter of E. W. Hollingsworth, who married the widow of the deceased son of the testatrix.
'(3) That on February 15th, 1941, Gussie G. Raines, Theodosia H. Duskin, E. W. Hollingsworth, and Nancy Stewart Griggs (now Nancy Griggs Shipley) executed the power of attorney, copy of which is attached to plaintiff's petition, marked exhibit 'B.' That the Randolph County farm lands devised in item 6 of the will of Mrs. Theodosia S. Griggs were operated by E. W. Hollingsworth, Gussie G. Raines, and J. W. Duskin, as attorneys in fact under said power of attorney, until the 15th day of January, 1943, at which time Nancy Griggs Shipley revoked said power. That in the operation of said farm lands, for the years 1941 and 1942, it was necessary to borrow money, for which notes were given in the name of E. W. Hollingsworth, Gussie G. Raines, Theodosia H. Duskin, and Nancy S. Griggs, legatees of the estate of Mrs. Theodosia S. Griggs, deceased, as makers, said notes being signed by E. W. Hollingsworth, Gussie G. Raines, and J. W. Duskin, attorneys in fact.
'(4) That on January 26th, 1934, Mrs. Theodosia S. Griggs, executed a security deed, in which she conveyed to the Federal Land Bank the farm lands in Randolph County, devised under items 6 of her will, for the purpose of securing the payment of an indebtedness in the principal sum of $24,800. That on May 27th, 1940, Mrs. Theodosia S. Griggs executed a security deed in which she executed to the Albany Federal Savings and Loan Association, the brick building, known as the Stewart Building, devised in item 7 of her will, for the purpose of securing the payment of an indebtedness in the principal sum of $6500. That on June 12th, 1940, Mrs. Theodosia S. Griggs executed a security deed in which she conveyed to the Federal Land Bank the farm lands in Terrell County (known as the McLain Place), devised in item 6 of her will, for the purpose of securing the payment of an indebtedness in the principal sum of $12,800. That the debts secured by the foregoing security deeds were not paid at the time of the death of Mrs. Theodosia S. Griggs, but were paid by the executors, and in the amounts hereinafter set forth.
'(5) That the executors received from the residence of the estate the sum of $5,065.21 being proceeds from the sale of property not specifically devised, which included the cash on hand at the date of the death of the testatrix. In addition thereto, the executors sold property devised in item 6 of the will of Mrs. Theodosia S. Griggs, as follows:
which amount was disbursed by the executors as follows:
'(6) That E. W. Hollingsworth, Gussie G. Raines, and Theodosia H Duskin received net profits from the operation of the Randolph County farms for the years 1941 and 1942, in the amount of $31,456.47, of which $10,406.46 was applied to the payment of the debts of the Griggs estate (a difference of $21,050.01). That Gussie G. Raines and Theodosia H....
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