Ringer v. Lockhart

• Decision Date: 21 October 1977
• Docket Number: No. 32331,32331
• Citation: Ringer v. Lockhart, 240 Ga. 82, 239 S.E.2d 349 (Ga. 1977)
• Parties: Kenneth P. RINGER, Jr. v. Everett Gene LOCKHART, Executor, et al.
• Court: Georgia Supreme Court

Page 349

239 S.E.2d 349

240 Ga. 82

Kenneth P. RINGER, Jr. v. Everett Gene LOCKHART, Executor, et al.

No. 32331.

Supreme Court of Georgia.

Oct. 21, 1977.

Rehearing Denied Nov. 1, 1977.

Tom Cain, Lawrenceville, for appellant.

James W. Garner, Lawrenceville, for appellees.

PER CURIAM.

This is the second appearance of this case before the court. In Ringer v. Lockhart, 237 Ga. 166, 227 S.E.2d 57 (1976), we reversed an order of the trial court, holding that the pleadings did not show on their face that the plaintiff could not prove a state of facts under which he could prevail.

The defendants subsequently filed a motion for summary judgment, which was granted, and the plaintiff-appellant again appeals to this court.

Where a defendant files a motion for summary judgment, in order for him to prevail, he must through uncontroverted evidence, by affidavits, depositions, interrogatories or otherwise, effectively pierce any state of facts contained in the plaintiff's complaint, or that may be proven in connection therewith, so as to preclude as a matter of law the plaintiff's right to prevail. The allegations of both the petition and the answer must be taken as true in a summary judgment case unless the movant successfully pierces the allegations so as to show that no material issue of fact remains. Alexander v. Boston Old Colony Insurance Company, 127 Ga.App. 783, 195 S.E.2d 277 (1972).

" Until the moving party produces evidence or materials which prima facie pierce the pleadings of the opposing party, no duty rests upon the opposing party to produce any counter evidence or materials in affirmative support of its side of the issue as made by the pleadings." Southern Bell Telephone and Telegraph Company v. Beaver, 120 Ga.App. 420, 170 S.E.2d 737 (1969). Where the pleadings make a factual issue, a summary judgment may not be granted unless the depositions and affidavits pierce the allegations of the pleadings. Cotton States Mutual Insurance Company v. Martin, 110 Ga.App. 309, 138 S.E.2d 433 (1964). The burden of proof to show that there was no genuine issue of material fact rests on the party moving for summary judgment, irrespective as to which party would have the burden of proof at trial on the issue involved. Price v. B-Line Systems Inc., 129 Ga.App. 34, 198 S.E.2d 328 (1973). All evidence and materials submitted on motion for summary judgment, including the testimony of the parties, must be construed most strongly against the movant. Giant Peanut Company v. Carolina Chemicals, Inc., 129 Ga.App. 718(1), 200 S.E.2d 918 (1973).

The defendant-appellee's motion and supporting evidence have not met the above tests in this case. Plaintiff-appellant's cause of action is based on fraud, and while fraud may not be presumed, being in itself subtle, slight circumstances may be sufficient to carry conviction of its existence. Code Ann. § 37-709. Durrence v. Durrence, 224 Ga. 620, 163 S.E.2d 740 (1968).

Fraud may be consummated by signs or tricks, acts or silence, concealment when there is a duty to disclose, or by any other unfair way used to cheat another. Code Ann. §§ 37-705 and 105-304.

A confidential relationship exists where one party occupies a position of trust and confidence with respect to another. Such a relationship can exist between an executor representing an estate of a decedent, and a legatee or devisee of the estate represented in administration. Dorsey v. Green, 202 Ga. 655, 658-9, 44 S.E.2d 377 (1947); Larey v. Baker, 86 Ga. 468, 474-5, 12 S.E. 684 (1890), Code Ann. § 37-708.

An administrator (or executor) " . . . is an administrative representative of the deceased, with property and testamentary rights. It (he or she) is a quasi court officer . . . it has the sacred duty of standing in the place of the deceased and administering his estate as directed." Dobbs v. First National Bank of Atlanta, 65 Ga.App. 796, 16 S.E.2d 485 (1941).

"(I)t is generally, if not always, humanly impossible for the same person to act fairly in two capacities and on behalf of two interests in the same transaction. Consciously or unconsciously he will favor one side as against the other, where there is or may be a conflict of interest. If one of the interests involved is that of the trustee personally, selfishness is apt to lead him to give himself an advantage. If permitted to represent antagonistic interests the trustee is placed under temptation and is apt in many cases to yield to the natural prompting to give himself the benefit of all doubts, and to make decisions which favor the third person who is competing with the beneficiary." Bogert, Trust and Trustees, § 543 at pages 475-76 (2d Ed. 1960). See also, 2 Scott, Trusts, p. 1297, § 170 (3d Ed. 1967).

Under these circumstances, the beneficiary need only show that the fiduciary allowed herself to be placed in a position where her personal interests might conflict with the interests of the beneficiary. It is unnecessary to show that the fiduciary succumbed to this temptation, that she acted in bad faith, that she gained an advantage, fair or unfair, or that the beneficiary was harmed. Such conduct by the fiduciary will not be tolerated by the court. The executrix-trustee must avoid being placed in such a position. If she cannot avoid being placed in such a position she may resign, or she may fully inform the affected beneficiary of the conflict or upon so informing the court, she may request the court to appoint a guardian ad litem to protect the unprotected interests. Where she fails to do any of these things she proceeds at her peril.

This court held in Lowery v. Idleson, 117 Ga. 778, 780, 45 S.E. 51, 52 (1903) that, "(A)n administrator or executor is a trustee invested with a solemn trust to manage the estate under his control to the best advantage of those interested in it; and if he undertakes to sell the property of the estate it is his bounden duty to do everything in his power to make it bring as large a price as possible. Nothing can be tolerated which comes into conflict or competition with the interests and welfare of those interested in the estate."

In Haley v. Atlantic National Fire Insurance Company, 151 Ga. 158, 163, 106 S.E. 122, 124 (1920), this court said: "(T)he broad rule of equity, applicable alike to agents, partners, guardians, executors . . . is that it is the duty of a trustee not to accept any position or to enter into any relation or to do any act inconsistent with the interest of the beneficiary."

We also said in Clark v. Clark, 167 Ga. 1, 5, 144 S.E. 787, 789 (1928), that, "(W)henever he . . . has placed himself in a position that his personal interest has or may come in conflict with his duties as trustee, . . . a court of equity never hesitates to remove him. In such circumstances the court does not stop to inquire whether the transactions complained of were fair or unfair; the inquiry stops when such relation is disclosed."

We concede that the rights of the widow to a year's support are a paramount claim against an estate and indeed the statute so provides. On the other hand, it was never intended by the legislature or by the courts, that because of her priority she could take an unfair advantage of the estate, and this she might easily do where she also represents the estate's interest in her dual capacity as executrix.

Where a widow and named executrix under the will of a decedent, who is left a life estate in all of the property of the...