Smith v. Varner, 48669
| Decision Date | 04 December 1973 |
| Docket Number | No. 48669,No. 2,48669,2 |
| Citation | 130 Ga.App. 484,203 S.E.2d 717 |
| Parties | Nelle V. SMITH et al. v. John B. VARNER |
| Court | Georgia Court of Appeals |
Henry T. Smith, Atlanta, for appellants.
Kaler, Karesh & Frankel, Samuel N. Frankel, Allan J. Tanenbaum, Atlanta, for appellee.
Syllabus Opinion by the Court
On August 13, 1947, John B. Varner, in accordance with an item of his mother's will, executed a promissory note of $13,000 for sums advanced to him by his mother. The acknowledgement attached thereto recited that the note should be considered advancements made to him out of his mother's estate. A new will made in 1960 by his mother recited virtually the same thing, that is, a 'loan or advancement,' had been made to her son, and another loan or advancement had been made to a daughter, Miriam Varner Dabney.
On January 8, 1963, Mrs. Varner executed an irrevocable trust, naming the Citizens and Southern National Bank as trustee, and directing that upon her death the corpus be paid to her estate. Virtually all of Mrs. Varner's property, except the promissory note executed by John B. Varner, was included in the trust agreement. Two of Mrs. Varner's children, john B. Varner and Nelle V. Smith, signed the irrevocable trust stating, 'We agree to this,' ostensibly because the trust bank felt Mrs. Varner's mind was failing, and she might have been incompetent. On November 21, 1963, Mrs. Varner made a third will, leaving all of her property to her three children equally, and naming her son, John B. Varner, as executor. On the same date (November 21, 1963) she executed an amendment to the irrevocable trust, directing that the corpus of the irrevocable trust be paid, following her death, directly to the beneficiaries (her three children) and not to the estate as provided in the trust. But this was a unilateral agreement, not accepted, nor agreed to by the trustee.
Mrs. Varner was declared to be mentally incompetent in 1965, and in 1970 she died, and her will was probated in common form. Because of the conflict in the trust and amendment and because of friction between Mrs. Varner's heirs (differences between the two sisters and their brother), the bank, as trustee, was uncertain as to the method of distributing the trust fund, so it requested all three beneficiaries to enter an agreement, and upon executing same, it paid the funds to them.
The agreement entered into, at the instance of the bank, by the beneficiaries, John Varner, individually and as executor, and Mrs. Smith and Mrs. Dabney, the two sisters contained the following: 'The Beneficiaries, Committee and Executor do hereby, jointly and severally, acknowledge, declare and agree that neither they nor any of them, individually or in their representative capacity, have any claims of any kind or nature against any other Beneficiary, or against the Committee or Executor, or against the Estate of Helene S. Varner.' Notwithstanding this agreement, the two sisters brought suit to recover 2/3 of the $13,000 against their brother, John B. Varner.
The defendant brother denied the material portions of the complaint, plead the statute of limitation, and estoppel, and a counterclaim. The counter-claim was disposed of prior to trial and is not a part of this appeal. The issue of statute of limitation was also eliminated due to the tolling of the statute during the time Mrs. Varner was mentally incompetent.
The case proceeded to trial and defendant contended that the $13,000 payment from his mother was an advance, and not a loan which could be recovered by legal action; and he contended that plaintiffs were estopped to pursue this action, as they knew of the advance at the time they entered the written agreement, although the sisters contended they did not have such knowledge, nor in the exercise of ordinary diligence, should they have known of the existence of the advancement and note prior to the execution of the aforesaid agreement. Defendant also contended that the will which was probated in common from had not been contested by the plaintiffs. The jury returned a verdict for the defendant. Judgment was regularly entered thereon. Plaintiffs filed a motion for new trial, which was later amended, and overruled. Plaintiffs appeal. Held:
1. An advancement is any provision made by a parent out of his estate for and accepted by a child during his lifetime over and above the obligation of the parent for maintenance and education. See Code § 113-1013. The question of whether a transfer of funds between parent and child is to be treated as an advancement depends upon the intention of the parent at the time of the transaction. Barron v. Barron, 181 Ga. 505(2), 509, 182 S.E.2d 851; Treadwell v. Everett, 185 Ga. 454(1), 195 S.E. 762; Manry v. Manry, 196 Ga. 365(5), 26 S.E.2d 706. Here, a mother advanced money to a son and took a note therefor and prima facie such note represents an indebtedness and not an advancement. But this presumption is subject to be rebutted. Cutliff v. Boyd, 72 Ga. 302(7). The note shows the same represented an indebtedness but the language of the wills and the acknowledgement by the son attached shows that it could be considered an advancement and in fact, her wills used the term 'advancement.' The evidence here presented a jury question as to whether the note represented a loan or an advancement.
2. While the agreement executed by the three parties to this litigation with the bank as trustee, was executed primarily for the purpose of getting the bank to make payments directly to them as beneficiaries and not to the estate, nevertheless it was recited therein that there were no claims of any kind or nature against any other beneficiary 'or against the Committee, Executor, or against the estate;' and again from the testimony of the parties and also from this written instrument, there was a question for jury determination as to whether or not the plaintiffs here were estopped and precluded from suing their brother, the executor under the will. See Code § 38-114; Harris v. Abney, 208 Ga. 518(2), 67 S.E.2d 724; Bell v. Studdard, 220 Ga. 756, 760, 141 S.E.2d 536; Swift & Co. v. Hall, 94 Ga.App. 239, 240(2), 94 S.E.2d 145. The written instrument could be construed as an accord and satisfaction of differences and this in itself would estop further proceedings by the parties against each other as to all rights and actions dealt with in said written agreement.
The evidence was sufficient to support the verdict and the general gounds of motion for new trial are not meritorious. Daniels v. Hartley, 120 Ga.App. 294, 295, 170 S.E.2d 315.
3. During the trial it was shown that other...
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