Robinson v. Murray

• Decision Date: 01 December 1944
• Docket Number: 14912,14913.
• Citation: 32 S.E.2d 496,198 Ga. 690
• Parties: ROBINSON et al. v. MURRAY et al. MURRAY et al. v. ROBINSON et al.
• Court: Georgia Supreme Court

32 S.E.2d 496

198 Ga. 690

ROBINSON et al. v. MURRAY et al.

MURRAY et al. v. ROBINSON et al.

Nos. 14912, 14913.

Supreme Court of Georgia

December 1, 1944

Rehearing Denied Dec. 13, 1944.

On January 22, 1943, Mrs. Margaret Robinson, Mrs Ruby Wheeler, Mrs. Marie Parker, and Mrs. Lilly Sharpe, filed a suit in equity against G. W. Murray, M. A. Murray, and A W. Gragg, alleging that the plaintiffs and their two brothers, the defendants Murray, were the children and sole heirs at law of F. M. Murray, who died intestate on November 21, 1940, his wife having predeceased him; that more than a year before his death, to wit, on August 28 1939, F. M. Murray executed to the two defendant sons, a deed purporting to convey all of his real estate, consisting of about 2800 acres of land in Long County, and the greater part of his personal property; but that such deed was subject to certain 'trust conditions' stated in the petition, by reason of which the plaintiffs were entitled to an accounting and other relief in equity. It was alleged that the defendant Gragg had purchased from the other defendants the timber on the land in question; but on the trial a nonsuit was granted as to him, and no exception having been taken to that judgment, the case stands as one solely between the four daughters of F. M. Murray, deceased, as plaintiffs, and the two sons as defendants. These defendants filed general and special demurrers to the petition. The plaintiffs amended their petition to meet the grounds of special demurrer. The general demurrer was then renewed and overruled. The defendants excepted pendente lite. They also filed an answer. The jury found a verdict for the defendants. The plaintiffs' motion for a new trial, based on the usual general grounds and numerous special grounds added by amendment, was overruled, and they excepted. The defendants then sued out a cross-bill of exceptions, assigning error upon the order overruling their general demurrer and on their exceptions pendente lite as previously taken to such order.

The deed, a copy of which was attached to the petition, recited a consideration of $30,000 for the land and personalty therein described, and was in the form of an ordinary warranty deed except that it contained in conclusion, the following reservation:

'However, the said party of the first part herein reserves the right to the use of the home, jointly with grantees herein, as a place of residence so long as he shall live and/or cares to so occupy the same and use the same, and to have the use of as much of the cleared lands as may be agreed upon and desired for making crops, and the use of mules, plows, etc., necessary in making said crops, without the charge of any rental therefor.'

The petition as amended contained substantially the following allegations:

The land was worth $40,000 and the personalty $8,000. The grantor owned the following personalty in addition to that described in the deed: One Chevrolet sedan automobile, worth about $600, and notes, accounts, and choses in action of the value of about $2,500, an itemized statement of which cannot be given by the plaintiffs, because all data pertaining thereto is in the possession of the defendants. No cash was paid for the deed; the true consideration being an oral agreement, made by the grantees with the grantor, that they would take the real and personal property and manage and control the same during the life of the grantor, paying to themselves fair compensation for the services to be rendered by them and giving to the grantor a support and maintenance out of the income, rental, and proceeds of the property, and all medical, surgical, and nursing care and attention which his condition might require during the balance of his life, and upon his death would divide the real and personal property equally and in kind among the six heirs; and should such division be found impracticable, then they would convert the property into cash at the least expense and on the best terms to be secured, and, from the proceeds so converted into cash, divide the net proceeds thereof equally among the six children, so as to avoid an administration in the court of ordinary. The said F. M. Murray, the grantor, thought and believed that the language used in said warranty deed conveyed and included his real purpose and intention in executing the same, and that the real consideration for said deed, as above recited, would be faithfully carried out by said defendants.

About a year before the deed was executed on August 28, 1939, and at other times, the grantor father expressed to his sons, the grantees, the wish that his property might be so taken and applied by them, to which they assented, he being at all such times mentally competent; but, when the deed was executed, he was not capable of understanding its terms, although the defendants knew that they were accepting the deed under the trust conditions above stated. The fair compensation which the defendants knew that the grantor expected them to receive, was $100 per month for management, less $25 per month for the use of the farm and outbuildings from the date of the deed, and $30 per month for the services of an accountant and bookkeeper. After such conveyance by warranty deed, the sons executed to their father a security deed for $20,000, 'to show that the warranty deed was made on a monetary consideration and not for the purpose of carrying out the trust conditions, as above recited, in the administration of the estate,' which security deed was recorded on August 29, 1939, and 'was a part of the scheme of said defendants to secure possession of the estate * * * for the use and benefit of [themselves], and to avoid carrying out of the trust conditions under which the warranty deed was made on the 28th day of August, 1939.' Thereafter, the defendants endeavored to borrow money by giving a second security deed on the real estate, but were unable to do so on account of the security deed for $20,000 which they had given to their father. They then prevailed upon him to enter a cancellation of said security deed, by representing to him that it would be to the best interests of all the heirs and conducive to economy in operating the farm and turpentine business for money to be borrowed on the real estate. Because of his feeble health, both mental and physical, he was unable to resist their importunities, and consented to execute a cancellation of his security deed, and did execute the same on January 31, 1940, which cancellation was entered of record on February 6, 1940. Later, the defendants obtained the consent of their father to join in executing a security deed to Jefferson Standard Life Insurance Company for a loan of $8,000. In order to secure the signature of their father to this deed, the defendants represented to him that they could not successfully carry out 'his wishes in trust by them to be performed' unless the money was so borrowed, since with the cash in hand the property could be operated with less expense than through borrowing from a naval stores factor, and by further representing to him that the interest of all the heirs would be promoted by advancing to each of them some needed money for their personal use, that is to say, $1,000 to each of the sons and $500 to each of the daughters, thus leaving for operating capital $4,000 to be used by the defendants in carrying out the 'trust conditions.' The signature of the father to the Jefferson Standard Life Insurance Company was obtained on February 13, 1940, and the loan from that company was then accordingly obtained. During the month of March following each of the daughters was paid the sum of $500 in cash by the defendants; but in accepting said cash petitioners (the daughters) 'were in no way consenting to the claim later made by said defendants that they were paying them a part of the purchase price of their father's estate.' A further representation, made by the defendants to their father to secure his consent to mortgage the property, was that they would execute a second deed to secure debt to him for the sum of $13,000, and he could transfer said second deed to secure debt to the petitioners as security that the defendants would faithfully carry out the trust conditions imposed by the warranty deed of August 28, 1939; also, that they, the daughters should be permitted to collect the notes, accounts, and other indebtedness, including two described items of indebtedness amounting to $1800. The defendants, soon afterwards, and subject to the existing security deed in favor of the Jefferson Standard Life Insurance Company, executed to their father such second security deed for an expressed consideration of $13,000. This deed was never transferred by their father to the petitioners, nor have they been permitted to collect any of the notes, accounts, or choses in action due to their father, since all books of account and data respecting the same are in the hands of the defendants. In March, 1940, the petitioners learned of the loan from Jefferson Standard Life Insurance Company; and in July, 1940, the defendants 'insisted to your petitioners * * * that said $13,000 deed to secure debt represented the entire amount which your petitioners would receive in full out of the estate of their father and in fulfillment of the trust conditions imposed by their father.' In December, 1941, the defendants executed to A. W. Gragg a timber deed to the timber on said land, but the petitioners did not know of that transaction until after the timber deed had been placed on record, 'and after the defendants had paid to each of your petitioners the sum of $2,750 in cash, and exacted of petitioners, upon said payment, that they join with the defendants in executing a cancellation of...