Rives v. Rives

• Decision Date: 21 May 1901
• Parties: RIVES et al. v. RIVES et al. BURT et al. v. SAME.
• Court: Georgia Supreme Court

39 S.E. 79

113 Ga. 392

RIVES et al. v. RIVES et al.

BURT et al. v. SAME.

Supreme Court of Georgia

May 21, 1901

Syllabus by the Court.

1. When the supreme court has before it both a main bill of exceptions and a cross bill of exceptions, and the latter presents a question which is controlling upon the case as a whole it will be disposed of first; and, if the judgment therein excepted to is reversed, the writ of error issued upon the former will be dismissed.

2. The plaintiffs in the present case did not allege facts entitling them to any of the relief for which they prayed.

Errors from superior court, Hancock county; S. Reese, Judge.

Equitable petition by J. H. Rives and others against George S. Rives Frank W. Burt, and others. Judgment dismissing the suit as to Frances W. Burt and Lily W. Little on demurrer, and plaintiffs bring error, and for refusal to sustain the general ground of their demurrer Burt brings cross error. Writ of error on main bill of exceptions sustained, and cross bill reversed.

Hardeman Davis & Turner, and R. H. Lewis, for plaintiffs in error.

Hall & Wimberly and W. H. Burwell, for defendants in error.

LUMPKIN P.J.

An equitable petition was filed in the superior court of Hancock county by J. H. Rives and two others. The defendants therein named were George S. Rives and Mrs. M. E. Rives, of that county, as executor and executrix of the will of George S Rives, deceased; Mrs. Frances W. Burt, as guardian of Miss Lily W. Little; Miss Little herself (these two being of Bibb county); and Thomas S. Reese, as ordinary of the county first named. The following embraces a substantial statement of so much of the contents of the petition as it is now material to consider:

Petitioners are children, heirs at law, and legatees of George S. Rives, deceased, and the executor named is their brother. In 1879 or 1880 the said Frances W., being then the widow of Joseph F. Little and the administratrix upon his estate, received as such $11,200, to which she and Miss Little, her daughter, were entitled as his heirs. She loaned the entire sum to Baker & Co., an insolvent partnership, and because of its insolvency the loan was never at any time after the making thereof collectible, but was in fact a total loss to Little's estate. Subsequently, Mrs. Little, by another marriage, became Mrs. Burt; and, having been appointed guardian of her said daughter, gave a bond as such in the sum of $12,000, which George S. Rives, deceased, signed as surety. Notwithstanding the facts with respect to the loan to Baker & Co., Mrs. Burt charged herself as guardian with one-half of the $11,200; but as no part of the same was ever in her hands as guardian, or could have been collected after she became guardian, she was not, as such, properly or lawfully chargeable therewith. Mrs. Burt and Miss Little assert and claim that because of the surety ship of George S. Rives, deceased, upon the guardian's bond, his estate is liable to the ward for drivers sums, including one-half of the above-mentioned $11,200, with interest there on, and she is threatening to bring suit upon the bond. George S. Rives, who is the managing executor of the testator's estate, has obtained from the court of ordinary of Hancock county an order authorizing him to settle Miss Little's demand by paying to her the sum of $7,000, and he has agreed to do so. The order just referred to was granted upon an exparte application made by the executor, and without evidence, other than his statement to the court, that in his judgment it was to the best interest of the estate, in order to save litigation, that said sum should be so paid. When George S. Rives, deceased, signed the Guardian's bond, he was insane, and therefore incapable of executing any contract. "The said George S. Rives, executor as aforesaid, admits that his father, the said George S. Rives, was insane at the time he executed said bond, but sets up as a reason for his conduct in procuring said order of settlement that, as he had propounded the will of his father as executor, he was doubtful as to whether he could make said question of said bond being void by reason of the insanity of your petitioners' father. Your petitioners submit that this is no reason why he should pay said bond or any part thereof, and for him to do so would be a legal fraud upon your petitioners and the other heirs at law of your petitioners' father, and that it would be inequitable and unjust for him to do so." For the reasons stated, the testator's estate is not liable on the guardian's bond. Under the will of George S. Rives, deceased, "said executors are required to keep the estate together until the youngest child shall have reached his majority, but the will also gives said executors the right to pay off to the legatees under said will certain portions of said estate as they reach their majority. Your petitioners have reached their majority, but said executors refuse to account to them for any part thereof, as contemplated under their father's will, alleging as a reason therefor that they cannot do so as long as said bond is outstanding against them. Your petitioners charge that to keep them longer out of their patrimony under said will, by reason of the fact that there is a bond outstanding upon which there is no liability, and upon which said managing executor admits there can be no liability, by reason of the unfortunate condition of your petitioners' father's mind at the time he signed said bond, is inequitable and unjust." The prayers of the petition were for process; that "the said George S. Rives and M. E. Rives, executors as aforesaid, be restrained from paying out said sum of seven thousand dollars ($7,000), or any other sum, to the said Lily W. Little on account of said bond"; that she "be enjoined and restrained from receiving said sum of money, or any part thereof, from said executors, and that she be enjoined and restrained from bringing any suit therefor whatever; *** that said bond be delivered up and canceled, so far as your petitioners' father's estate is concerned"; and that petitioners have "such other and further relief as to the court may seem meet and proper."

Before the court finally passed upon a demurrer filed at the appearance term by Mrs. Burt and Miss Little, the plaintiffs amended their petition by alleging that "the obtaining of said order from the ordinary and effort to pay said seven thousand dollars is collusive between the said executors and the said Lily W. Little and those who were then representing her; that the same is a fraud upon the rights of your petitioners, and is contrary to equity and good conscience." The grounds of the demurrer above referred to were as follows: "(1) That the petition referred to three papers, to wit, the guardian's bond, the will of George S. Rives, Sr., and an order alleged to have been passed by the ordinary of Hancock county autho...