Robinson v. Georgia Sav. Bank & Trust Co.

• Decision Date: 09 March 1938
• Docket Number: 12106,12107.
• Citation: 196 S.E. 395,185 Ga. 688
• Parties: ROBINSON v. GEORGIA SAV. BANK & TRUST CO. GEORGIA SAV. BANK & TRUST CO. v. ROBINSON.
• Court: Georgia Supreme Court

196 S.E. 395

185 Ga. 688

ROBINSON v. GEORGIA SAV. BANK & TRUST CO.

GEORGIA SAV. BANK & TRUST CO. v. ROBINSON.

Nos. 12106, 12107.

Supreme Court of Georgia

March 9, 1938

Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.

Proceeding by Deas G. Tupper, as a residuary legatee, for whom Mrs. H T. Robinson, as administratrix, was substituted as party plaintiff following his death, against the Georgia Savings Bank & Trust, Company for an accounting. To review the judgment the defendant brings error, and plaintiff brings cross-exceptions.

Affirmed in part and reversed in part.

Syllabus by the Court.

1. The court did not err in overruling the general demurrer of the executor to the petition of a residuary legatee for an accounting and a recovery of stated items of money, since, although no liability appeared as to certain items, the right to an accounting and a recovery of other items sufficiently appeared.

2. The other legatees were not necessary parties.

3. The petition was not subject to special demurrer as not having made the defendant a party in its representative capacity.

4. On the trial of exceptions to the auditor's report, the error in refusing the request of the defendant to charge the jury that it was not required to sell the real estate within one year after its qualification as executor was harmless.

5. Under the conditional legacies of the will, it was error to determine, at the time when the court did, that the plaintiff was entitled to recover half of a one-third interest in the residuary estate, instead of half of a one-fourth interest; and it was error so to decree.

6. It was error not to provide in the final decree that the plaintiff recover his share of the cash and personalty of the residuary estate, including proceeds of sale of stock and dividends therefrom, less all proper disbursements by the executor; and error to relegate the plaintiff to the court of ordinary, without completing such accounting and settlement as to all assets, including a sale of the real estate if necessary for distribution.

7. The court did not err in denying the motion of the plaintiff to recommit the case to the auditor upon questions of liability for failure to sell the real estate.

8. The exceptions of the executor in its cross-bill of exceptions, attacking the item recovered by the plaintiff in the verdict and final decree, are not such as can be considered.

On April 4, 1933, Deas G. Tupper, as a residuary legatee under the will of Mrs. Mollie Hall Miller, filed a petition against Georgia Savings Bank & Trust Company, executor of the will, for a full and complete accounting of his share under the will, for a judgment for amounts as specified, for an injunction, and for general relief. Averments in the pleadings and facts in the record pertinent to the questions presented are sufficiently stated in the opinion, except the will, which, so far as is material, was as follows:

'Item 4. I will that the entire residue of my estate of every kind and character, wherever situated, be divided by my executor into four equal shares, and as herein provided that one of said shares go to the children of my daughter, Edna Raine, another of said shares to the children of my daughter, Mary Tupper [the plaintiff and one sister being the only children of Mrs. Tupper], another of said shares to the children of my daughter, Reinette Frazier, and another of said shares to the children of my son, J. Hall Miller, * * * my said grandchildren to take per stirpes and not per capita. * * * The said shares to be administered by my executor and turned over to my said grandchildren as herein provided, and the share hereby devised to the children of my son, J. Hall Miller, to be subject to the terms hereinafter stated in this my will.

'Item 5. I will that my executor shall control and manage said rest and residue of my estate for the benefit of my said grandchildren, and that it have full power and authority to sell or otherwise dispose of and convey any part, or all, of my estate, either at public or private sale, without any order of court, and on such terms as it may think best, and to invest the purchaser with good title, and it may continue so to do as long as my estate is not completely wound up. My said executor is directed to pay over to each grandchild its proportionate share upon its becoming 21 years of age, and my said executor is hereby fully authorized and empowered to use its discretion in applying the income from the share going to the children of either of my three daughters and my said son, prior to their becoming of age respectively, for the maintenance, education, and support of such grandchildren or either of them; and, if necessity should arise, to use such income from either of said respective shares for the support of either of my said three daughters, or my son, the parent of the children to whom such share is devised, this being purely discretionary with my executor, and to be exercised only in the case of necessity.

'Item 6. I will that the share intended for the children of my son, J. Hall Miller, be subject to the payment to my estate of any balance owing by him at the time the delivery of the part of said share shall be made to the first of his children becoming of age. He is indebted to me now in the sum of $19,000, having reduced the amount he formerly owed, and contemplates making payment on said indebtedness; and if not completely discharged by the time of my death, he is not to be pushed by my executor, but shall be given time thereon without interest, until his oldest child becomes 21 years of age, at which time any balance owing by him shall be collected by my executor, and, if not paid, shall be deducted from and charged against the share which is going to his children under this will.'

'Item 8. I hereby nominate, constitute, and appoint the Georgia Savings Bank & Trust Company, a corporation, of Atlanta, Ga., as executor of this my will, and relieve my executor from giving bond and making any official return, but request that it furnish to each of my four children an annual statement showing the administration of my estate.'

The petition alleged that the plaintiff became of age on November 23, 1932. After his death pending the suit, his sister as administratrix was made the party plaintiff. While the petition did not show when the oldest child of J. Hall Miller, the son of the testatrix, became of age, the date, according to a stipulation in the brief of evidence, was on March 5, 1937, after the date of the filing of the auditor's report and after the date when the evidence before the auditor and the jury on exceptions to his report was taken.

Madison Richardson, and Dorsey, Stubbs & Dorsey, all of Atlanta, for plaintiff in error.

Arnold, Gambrell & Arnold, of Atlanta, for defendant in error.

JENKINS, Justice.

1. One of the residuary legatees of a will sued the executor for an accounting and a recovery of the plaintiff's share of specific items claimed; and for an injunction as to the granting of which no exception was taken. Under the will the residuary estate was left to the granchildren of the testatrix, the children of her three daughters, per stirpes with a conditional devise to the effect that the children of her son receive a fourth share, if, at or before the time his oldest child became of age, he repay a $19,000 debt due to the testatrix; and if he did not, that any amount then unpaid 'be deducted from and charged against the share which is going to his children under this will.' The will directed the executor to 'pay over to each grandchild its proportionate share upon its becoming 21 years of age,' and to 'control and manage said rest and residue of my estate for the benefit of my said grandchildren,' with full power and authority to sell all or any part of the estate at public or private sale, and to 'continue so to do as long as my estate is not completely administered.' The executor was further authorized in its discretion to apply the income from the share going to any child to maintenance, education, and support before majority; and also, in case of necessity, to any parent of the grandchildren. It was further provided: 'I hereby * * * relieve my executor from giving bond and making any official return, but request that it furnish to each of my four children an annual statement showing the administration of my estate.' The petition alleged that the plaintiff became twenty-one years old on November 23, 1932; that he was one of the two children of a daughter of the testatrix, and was entitled to half of one-third of the residuary estate; that the executor qualified on September 9, 1921; that it was his duty to sell the real estate and reinvest the proceeds in securities authorized by statute within one year after qualification as executor and within a reasonable time; that the defendant was liable for the lost value of the real estate as of September 10, 1922, the end of the first year of administration, on account of the then greatly enhanced value and the subsequent depreciation; that the defendant was liable for the value of a promissory note, on account of its failure to make collection; and that it was liable for the proceeds of sale of corporate stock and stock dividends. In addition to an accounting, a total judgment of $11,166.38 and interest was prayed for, representing one-half of one-third, instead of one-half of one-fourth, of the residuary estate, which the plaintiff claimed as one of the two children of one of the four children of the testatrix and including the alleged value of the items mentioned and all other assets as of the date stated, after deducting certain itemized alleged proper disbursements, debts, and special...