Smith v. Francis, s. 23030

• Decision Date: 09 September 1965
• Docket Number: Nos. 23030,23031,s. 23030
• Citation: 221 Ga. 260,144 S.E.2d 439
• Parties: Mozelle R. SMITH et al., Trustees, v. Blanche Rucker Thornton FRANCIS et al. Blanche Rucker Thornton FRANCIS v. John Fortson THORNTON et al., Trustees.
• Court: Georgia Supreme Court

Page 439

144 S.E.2d 439

221 Ga. 260

Mozelle R. SMITH et al., Trustees, v. Blanche Rucker Thornton FRANCIS et al.

Blanche Rucker Thornton FRANCIS v. John Fortson THORNTON et al., Trustees.

Nos. 23030, 23031.

Supreme Court of Georgia.

Sept. 9, 1965.

Syllabus by the Court

1. A ruling upon which no assignment of error was made will not be considered by this court.

2. It was not necessary to attach a copy of the will to the claim affidavit.

3. Where, under a proper construction of the pleadings, one individual was not a party to the proceedings, it was not error to overrule various motions asking that such individual be stricken as a party.

4. The trust created by a provision in the testator's will was not subject to any of the attacks made upon it. Hence, property devised to the trustees to hold under the trust provision could not be levied upon by a judgment creditor of the beneficiary of the trust.

5. Since there was no conflict of evidence as to a material issue, the trial judge erred in overruling the claimant's motion for a judgment notwithstanding the mistrial.

These cases arose when Blanche Rucker Thornton Francis sought to levy upon certain described property to satisfy a judgment for alimony and child support obtained against John Fortson Thornton, Jr. The levy of the sheriff declared that 'said property is levied upon as property of the defendant in fi. fa.' J. F. Thornton, Jr., filed a claim which alleged: 'that the aforesaid property is not the property of the defendant in fi. fa., but is the property of affiant and the said Mrs. Mozelle R. Smith Morris, as Trustees for John Fortson Thornton, Jr.' Pursuant to the claim, an affidavit in forma pauperis was filed by the claimant Thornton reciting that he, as one of the trustees, swore that the claim was not interposed for delay only; that the trustees bona fide claimed the right and title to the property and that from poverty the trustees were unable to give bond and security as required by law.

The property in question was devised in the will of John Fortson Thornton, Sr., under the following provision: 'I will, bequeath and devise to my executors and trustees hereinafter named, the homeplace where I live, and everything in it including the furniture and the 20 acres of land adjoining, together with all money I have in excess of the $8,000.00 bequeathed in Paragraph 3 of this Will. My Executors and Trustees shall hold this property for the use and benefit of John Fortson Thornton, Jr. The money shall be placed in a bank or building [and] loan association at interest, and shall be used to pay the taxes and the upkeep of the homeplace, and for the support and maintenance of my son John Fortson Thornton, Jr., and his children if in the wisdom of my Trustees and Executors they should deem this necessary or advisable. If said money is used in its entirety, then my Executors and Trustees are authorized to sell part of the land on the side of the homeplace from time to time, and this money shall be used as herein directed.'

J. F. Thornton, Sr., died March 31, 1963, and his will was duly probated in solemn form. Under the will, Mrs. Mozelle Smith (now Morris) and J. F. Thornton, Jr., were named as the executors and as trustees. They, as executors, executed a written assent to the devise, above set out, on June 27, 1963, which instrument was recorded on the same day. This instrument, after reciting the two executors were duly qualified under the will of J. F. Thornton, Sr., and that they assented to the devise made under Item 4 of that will, reproduced in toto that provision of the will as above quoted. Then, the original instrument as produced by the claimant recited: 'this assent is made under the provision of Section 113-801 et seq. of the Code of Georgia to pass title to the devisees named in said will, to wit, J. Fortson Thornton, Jr., and Mrs. Mozelle R. Smith, as trustees for J. Fortson Thornton, Jr., and embraces all real estate owned by deceased at the time of his death, to wit' (here followed a description of the land). However, as recorded in the clerk's office the clause 'and Mrs. Mozelle R. Smith, as trustees for J. Fortson Thornton, Jr.,' was omitted so that as set out in the records the instrument provided: 'this assent is made under the provision of Section 113-801 et seq. of the Code of Georgia to pass title to the devisees named in said will, to wit, J. Fortson Thornton, Jr., and embraces all real estate owned by deceased at the time of his death.'

The plaintiff in fi. fa., Mrs. Francis, moved to dismiss the claim affidavit and affidavit in forma pauperis on the grounds that neither is signed by both the trustees and that the affidavit in forma pauperis does not state the trust estate is in poverty. The trial judge overruled the motion to dismiss the claim and pauper's affidavit. Subsequently, the plaintiff in fi. fa. filed general and special demurrers, which were overruled.

The matter came on for trial before a jury in the Elbert Superior Court at which it was stipulated that the land levied upon was, prior to his death, the property of J. F. Thornton, Sr., who was the father of J. F. Thornton, Jr.; that the judgment sought to be levied was for alimony and child support against J. F. Thornton, Jr.; that the will of J. F. Thornton, Sr., had been probated in solemn form and letters testamentary issued to Mrs. Mozelle R. Smith (now Morris) and J. F. Thornton, Jr.; that they were dismissed as executors on August 5, 1963.

Evidence adduced upon the trial showed that J. F. Thornton, Jr., was an adult who, prior to his father's death, had no interest in or title to the property in dispute. There was also evidence that he had a 'drinking problem' and had dissipated the money left for him in trust. Regarding the discrepancy between the 'original' instrument and that recorded in the office of the Clerk of Elbert Superior Court, Thornton testified he signed the original, while his attorney who prepared and witnessed the instrument testified it was in that form when executed, not as contained in the records. Both the clerk and his assistant testified they customarily proof-read instruments they recorded, although both admitted that sometimes mistakes were made. Neither could recall copying the instrument in question. Mrs. Smith's (Morris) deposition was read in which she stated that she refused to sign the claim affidavit despite a letter requesting that she come to the office of the estate's attorneys to sign the claim papers.

During the trial both parties made motions for directed verdict which were overruled by the presiding judge. The cause was submitted to the jury and, upon their failure to agree upon a verdict, a mistrial was declared. Both parties then filed their motions for judgment notwithstanding the mistrial. The trial judge overruled both motions. Case No. 23030 is here on the claimant's exception to the judgment overruling his motion for judgment notwithstanding the mistrial. In case No. 23031 the plaintiff in fi. fa. excepted and assigned error to the overruling of her motion to dismiss the claim affidavit and pauper's affidavit 'because of improper signature'; to the overruling of her general and special demurrers and to the overruling of her motion for judgment notwithstanding the mistrial.

Heard & Leverett, E. Freeman Leverett, Elberton, for plaintiff in error in No. 23030 and defendant in error in No. 23031.

Grant & Matthews, William F. Grant, Elberton, for defendants in error in No. 23030 and plaintiffs in error in No. 23031.

QUILLIAN, Justice.

1. The plaintiff in fi. fa. did not except to the overruling of her written motion to dismiss the claim affidavit and affidavit in forma pauperis on the grounds that the claimant was not acting in good faith in submitting an affidavit in forma pauperis. Hence, although this point is argued by her counsel in brief to this court, we will not pass upon that judgment.

2. The first ground of special demurrer is predicated on the fact that a copy of the will was not attached to or made a part of the claim. It is contended that under Code § 81-105 a copy of the will must be so attached.

The cited Code section applies to petitions and provides that contracts and certain other enumerated instruments or writings 'should be incorporated in or attached to the petition in all cases in whcih they constitute the cause of action, or the relief prayed for must be based thereon.' But no pleading is generally necessary in addition to a claim. As held in Stonecypher v. Elliott, 181 Ga. 438, 441(2), 182 S.E. 587: 'In the trial of a case in which property has been levied upon as that of the defendant in execution, and a third person has intervened as claimant, the claim affidavit, expressed in the usual form, is generally the only pleading necessary to admit whatever evidence the claimant may have to offer to uphold his or her own title, or to disparage that of the defendant as a competing title.' Hadden v. Larned, 87 Ga. 634, 637, 13 S.E. 806; Frick Co. v. Taylor, 94 Ga. 683(2), 21 S.E. 713; Askew v. Amos, 147 Ga. 613(1), 95 S.E. 5. See Oliver v. Dickerson Supply Co., 221 Ga. 146, 143 S.E.2d 632.

3. By ground 2 of her special demurrers, in her motion to dismiss and as one of the grounds of her motion for a directed verdict the plaintiff in fi. fa. contends the claim and pauper's affidavits are defective because one of the trustees, Mrs. Smith (now Morris), purporting to be an affiant, did not sign the affidavit and that Mrs. Smith (Morris) should have been stricken as a party.

Neither in the caption, the body or jurat does it appear that Mrs. Morris was a deponent. The caption of the affidavit simply signified that the deponent, J. F. Thornton, Jr., and Mrs. Morris, as trustees, claimed the property described in the affidavit. The jurat shows the deponent was J. F. Thornton, Jr., the effect of which was, while he was without authority of law to undertake to do Mrs. Morris's...