Sanders v. Hepp

• Decision Date: 15 March 1940
• Docket Number: 13003.
• Citation: 8 S.E.2d 87,190 Ga. 18
• Parties: SANDERS v. HEPP et al.
• Court: Georgia Supreme Court

8 S.E.2d 87

190 Ga. 18

SANDERS v. HEPP et al.

No. 13003.

Supreme Court of Georgia

March 15, 1940

Rehearing Denied March 27, 1940.

Syllabus by the Court.

1. Where, after the payment of all debts and specific legacies there remained in the possession of an executor real estate which under the terms of the will was then subject to distribution to residuary legatees, and where the will did not provide otherwise, it was the right of any legatee, after one year from the qualification of the executor, to require a sale of the property for the purpose of distribution, it not being subject to division in kind; and where one of such legatees had made a partial assignment of her distributive share, the assignee could, to the extent of the assignment invoke the same remedy in a court of equity, and could do so without allegation or proof that the estate was being held together for the purpose of delaying or defeating the assignment.

2. Under the foregoing rulings as applied to the facts of the instant case, the court did not err, for any reason urged, in overruling the demurrer to the petition or in entering the decree in favor of the plaintiff.

Hall & Bloch, of Macon, for plaintiff in error.

Martin, Martin & Snow and Hall & Bloch, all of Macon, for defendants in error.

BELL Justice.

This case arose by a petition in equity, alleging as follows: Carlos Hepp, the plaintiff, is the holder of a partial assignment of the interest of Klara Loewenberg, one of several legatees, in the estate of her uncle, Samuel Mayer. The executor, Julius Sanders, qualified more than six years ago, and all debts and specific legacies have been paid for more than five years. From the time of their payment the executor has had in his possession valuable real estate which, according to the will, was then to be equally divided among designated residuary legatees, including the plaintiff's assignor, which real estate, being incapable of division in kind, should be sold for the purpose of distribution. The distributive share of Klara Loewenberg will exceed the sum of $2,500, 'which is the amount of said distributive share conveyed by the assignment to petitioner.' The plaintiff as such assignee sought a decree establishing the assignment and requiring the executor to sell the property for the purpose of distribution, and to pay to the plaintiff the amount assigned, from the distributive share of the assignor. He claimed the right to proceed in equity, because he has a mere partial assignment, which he cannot enforce in an action at law. Copies of the will and of the assignment were attached to the petition, and the executor and the assignor were made parties defendant. The court overruled a general and special demurrer to the petition, and the executor excepted pendente lite. The case was afterwards tried by consent before the judge without a jury. The evidence, with a stipulation, supported the allegations of the petition. It further showed that the assignment was made to secure an indebtedness of about $1,900, besides interest from July 1, 1936, and that the only reason the executor has not sold the real estate since the payment of all debts and specific legacies is that he has considered the real estate market unfavorable. The judge found for the plaintiff, and entered a decree directing the executor to sell the property for distribution, and to pay to the plaintiff the amount of the assignor's share not to exceed her indebtedness to him. To this judgment the executor excepted. Error was assigned also on the exceptions pendente lite.

In the brief of counsel for the plaintiff in error it is stated in effect that the following question is presented for decision: Can one holding an assignment from a legatee of $2,500 'of her distributive share' of an estate to which the legatee is entitled under a will compel a sale and distribution of the estate for the purpose of paying the debt secured by the assignment, in the absence of allegation and proof that the estate is being held together for the purpose of delaying or defeating the debt secured by the assignment? As applied to this case, which is a suit in equity based on a partial assignment of an interest in an estate which is ripe for distribution, and where, so far as contended, all necessary parties are before the court, we answer the question in the affirmative. The Code, § 113-2201, provides: 'Any person interested as distributee or legatee may, after expiration of one year from the grant of administration, cite the administrator to appear before the ordinary for a settlement of his accounts, or, if the administrator chooses, he may cite all of the distributees to be present at the settlement of his accounts by the ordinary. Such settlement shall be conclusive upon the administrator and upon all the distributees who are present at the hearing.' It will be noticed that this section provides only for a proceeding in a court of ordinary. It shows, however, that any person interested as a distributee or legatee may demand a settlement at any time after one year from the qualification of the legal representative, unless in case of an executor there is provision in the will to the contrary. In Williams v. Lancaster, 113 Ga. 1020(4), 39 S.E. 471, it was held that heirs at law may bring an action for their distributive shares against an administrator and sureties upon his bond, and pray for an accounting and settlement, at any time after the expiration of one year from his qualification. In Wheeler v. Horne, 136 Ga. 486, 71 S.E. 901, 902, it was held: 'An heir at law may bring an action in the superior court for her distributive share of an estate against the administrator thereof, * * * at any time after the expiration of one year from the time of his qualification. If there are debts due by the estate, the administrator can plead and prove them, and thus protect himself and creditors of the estate.' It has also been ruled that it is not a good ground of objections to an application by an administrator to sell land or other property, for the purpose of paying debts, that the market is depressed, and that for this reason the property would not sell for its full market value. Jackson v. Warthen, 111 Ga. 834, 36 S.E. 214. The same rule would apply, of course, where the proposed sale was for the purpose of distribution.

Under the foregoing principles, it is clear that if the legatee herself were suing to compel a distribution, she would not be required to allege or prove that the estate was being held together for the purpose of delaying or defeating her claim as a legatee; and we can see no reason why any such allegation or proof would be necessary in a similar suit by an assignee, as in this case. The right of an heir or a legatee to an interest in an estate is a chose in action, and is assignable. Greenwood v. Greenwood, 178 Ga. 605 173 S.E. 858. A right of action is assignable if it involves, directly or indirectly, a property right. Code, § 85-1805. The whole or a...