Russell v. Switzer

• Decision Date: 30 September 1879
• Citation: 63 Ga. 711
• Court: Georgia Supreme Court
• Parties: Russell, administrator, et al. v. Switzer.

63 Ga. 711

Russell, administrator, et al. v. Switzer.

Supreme Court of the State of Georgia

(September Term, 1879.)

[This case was argued at the last term, and the decision reversed.]

Equity. Trusts. Specific performance. Contracts. Consideration. Before Judge Tompkins. Chatham Superior Court. October Term, 1878.

This case is fully reported in the opinion. W. Grayson Mann, for plaintiffs in error.

A. P. & S. B.. Adams, for defendant.

Bleckley, Justice.

Leonard Finsterer and Madeline, his wife, died in Savannah, of yellow fever, on the 25th day of September, 1876, he surviving her a few hours. He left no children; she left one son by a former husband. Finsterer and wife were both natives of Germany, he of the kingdom of Bavaria, and she of the kingdom of Wurtemburg. They were married in the city of Baltimore in the year 1842 or 1844, at which time her son was from nine to eleven years of age. Finsterer brought into the coverture two horses and two carts, and his wife brought in some small property, but of what it consisted does not appear.

After their marriage, they seem to have resided at Baltimore, Md., Charleston, *S. C., Augusta, Ga., and in Chatham county, near Savannah, and in Savannah. Her son, whose name was John G. Switzer, resided with them until the commencement of the late war (1861), when he entered the Confederate army. He was captured by the Federal forces, and became a resident of the state of Illinois, where he married in 1865, and where he has ever since resided. Until he left Georgia in 1861, he labored for and with Finsterer, his step-father, receiving only maintenance, his surplus earnings being taken by Finsterer, or going into the common stock. How much the family had accumulated when Switzer ceased to be a member of it does not appear; nor does it appear what his labor or his earnings were worth. The realty left by Finsterer at his death was appraised by the official appraisers of his estate at $4,750, and the personalty, including $910.95 in cash, was appraised at $2,552.70. Total appraisement, $7,302.70. One parcel of the realty, appraised at $250.00, was held by deed, dated in 1859, reciting as the consideration paid $450.00; another parcel, appraised at $2,400.00, was held by deed, dated in November, 1863, reciting as the consideration paid $7,100.00; and the third parcel, appraised at $2,100.00, was held by deed, dated in December, 1865, reciting as the consideration paid $2,500.00. These several deeds conveyed the premises described therein (all situated in Chatham county) to Leonard Finsterer, his heirs, etc., no mention being made of any trust or remainder in favor of Switzer or any other person.

Administration upon the estate of Leonard Finsterer was granted by the ordinary of Chatham county to Phillip M. Russell, after which, to-wit: on the 29th of December, 1877, John G. Switzer filed his bill on the equity side of Chatham superior court, against said administrator and certain persons, residents of Bavaria, Germany, claiming to be the next of kin and heirs at law of the intestate. The bill alleges that the intestate left no bloodrelations, and that these German claimants are in no wise of kin to him; that *by an act of the legislature of Georgia, approved February 24, 1877, the complainant was em-powered to receive, sue for, and collect all the property which was called the property of the intestate, and in the hands of his administrator; that the complainant alone is entitled to receive said property that he is the only son and heir at law of Madeline Finsterer, and that as such he is entitled to all the property of which she died seized, or to which she was entitled. It further alleges that apart from the said act of the legislature, and independently of any right of the complainant to inherit, he is entitled to the whole of the property in the hands of the administrator, "for the reason that all the property held by complainant\'s step-father at the time of his death was trust property, held by him in trust for the sole benefit of the complainant after the death of the said Leonard and his wife, Madeline; that although the legal title to the real estate may have been taken in the name of his step-father alone, and his said step-father may have had control of the personal property and effects, yet the said Leonard did not accumulate one-half the real estate or personal property, but that the greater portion was accumulated by the complainant and his mother; that from the time complainant was a young boy until he reached the age of thirty years he remained with his step-father, worked with him, was apprenticed out by him, and gave all his earnings to his step-father, with the distinct understanding that all the property accumulated should be held by the said step-father in trust for the benefit of himself, complainant\'s mother and complainant, and that after the death of said Leonard and wife, all the property so accumulated, and all the property which they, the said Leonard and Madeline, either of them might have, or be entitled to, should belong to and become the property of complainant; that the said Madeline, by gardening, running a store, and selling in the market accumulated more of the said property than did her husband; that she allowed her husband to take her earnings and invest them in the said property, for the *same reason which influenced complainant; that a considerable portion of her earnings was made and invested with the understanding and agreement aforesaid subsequent to the year 1866; that the said Leonard frequently, and at all times, during his lifetime, admitted that the said property was purchased with money belonging to complainant and his mother, with the distinct agreement that it should be owned and used as the property equally of said Leonard, complainant and his mother during their lives, and that upon the death of said Leonard and the mother of complainant, it should vest absolutely in complainant, and that he, the said Leonard, held said property upon said trust and use, and no other; that said Leonard always observed and respected the trust while in life, and it was his desire, intention and belief that it would be fully carried out after his death, and that complainant would obtain, in his own right, the entire property; and that said Leonard was a very ignorant man, and his failure to express this trust in the deeds taken by him for said property, or by other written documents to fully pro-tect the rights of complainant in said property, was due to the ignorance and mistake of the said Leonard, and to his perfect assurance and belief that it was unnecessary."

The bill waived discovery, and prayed for a decree declaring the complainant entitled to the property, for a full accounting and settlement by the administrator, and for general relief.

The defendants all answered. The German claimants, setting up their rights as next of kin and heirs at law, turned their answer into a cross-bill, and prayed that the property be decreed to belong to them as heirs, that the administrator be required to turn it over to them, and make a full and final settlement, and for general relief. None of the answers admitted any contract or agreement.

At the trial, the evidence submitted by the complainant tending to prove an agreement or understanding, consisted of certain letters and certain parol testimony, the material *parts of which will now be quoted from the record. A letter from Finsterer and wife to the complainant, dated August 8th, 1875, says: "Now we could hardly get half what the property is worth, as we cannot afford to lose so much because we had to work too hard, myself, your mother, and you too, my son; you know how hard it came.... You wrote to me to help you with a few hundred dollars, but I am very sorry I cannot help you at present. You see that I would have to sell the property for the purpose of getting the money, which I would not like to do. Let it remain together, for I cannot live much longer, and it will then make a fine property for you, my son, consequently you must not think hard of me." A letter from Finsterer alone to the complainant, dated November 23d, 1875, says: "Dear son, in your letter you will find four post-office orders, each for $50.00. Write immediately on receipt of them, as they are only good for thirty days. My son, take good care of that money, as it is the last you will get from me during my life. After my death you will get all. We are old. You have promised us you will take that one to you which is left." A letter from the same to the same, dated September 16th, 1876, says: "My dear son, perhaps this is the last letter you will receive from me; if so, some one else will write to you and give you information. Should it happen that I should die, you must come, so that the property and things as I have told you that after my death all shall be yours, that I have only saved it for you." A letter from Finsterer and wife to the complainant, dated September 19th, 1876: "The yellow fever is here, and several of our acquaintances have died with it, and we are not feeling well ourselves. Your mother has been feeling very bad for some days, and I feel very lonely now myself, and we cannot tell which one of us the Lord may call home first. And, my dear child, if any one of us should be called off by the fever, don\'t forget the promise that you have made to us that you would come and take care of the one left, and take charge of the *property. You know we have no heir but you, and no one can benearer to me than you. We will be very lonely if sick and you so far away. This may be the last letter we will ever write to you, but if I am called off, do come to your mother and take good care of her, for all I possess is hers and yours." These four letters were all written at Savannah. A witness, Mayer, testified: "Finsterer has frequently told me that after his death and his wife\'s, all the property would belong to John,...