Tinsley v. Maddox
| Decision Date | 20 February 1933 |
| Docket Number | 8999. |
| Citation | 168 S.E. 297,176 Ga. 471 |
| Parties | TINSLEY et al. v. MADDOX et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Arbitrations are favored by courts.
Executor may submit claims for or against estate to arbitration without notice to legatees; legatees being parties to arbitration through executor (Civ. Code 1910, §§ 4004, 5020).
Award against executor, absent fraud, accident, or mistake, and until vacated, concludes legatees and all parties thereto as to matters submitted (Civ. Code 1910, §§ 4585, 5047).
In proper case, legatees, on executor's failure or refusal to sue, may bring equitable petition to vacate award against executor (Civ. Code 1910, § 5049).
Award against executor, after it is made judgment of court, may be vacated in equity for fraud, accident, or mistake (Civ. Code 1910, §§ 4585, 4629, 5029).
Award against executor cannot be vacated for executor's failure to make good defense, absent showing of accident, mistake fraud, or corrupt complicity between executor and plaintiff (Civ. Code 1910, §§ 4585, 4629, 5029).
Fraud authorizing equity to vacate award must be extrinsic to matter tried by first court, or must be fraud preventing unsuccessful party from fully exhibiting his case, precluding real contest on subject-matter of suit (Civ. Code 1910, § 4585).
That claim submitted to arbitration was false, or that award was induced by false swearing, would not authorize vacating it (Civ. Code 1910, §§ 4585, 4629, 5029).
Facts constituting fraud relied on to vacate award must be stated so that court may see illegality; general terms being insufficient (Civ. Code 1910, §§ 4585, 4629, 5029).
Vague exceptions to award, unaccompanied by evidence before arbitrators, and not furnishing full data from which court may determine mistake, if any exists, are properly dismissed on demurrer (Civ. Code 1910, §§ 4585, 4629, 5029).
To vacate award dependent in part upon consideration of evidence before arbitrators, brief of evidence, absent good excuse for lack thereof, should accompany petition (Civ. Code 1910, §§ 4585, 4629, 5029).
General statement that petitioner seeking to vacate award could not set out evidence before arbitrators because not stenographically reported held insufficient excuse (Civ. Code 1910, §§ 4585, 4629, 5029).
Testator may charge money legacy upon particular fund so as to make legacy follow fate of fund, though statute provides that gift of money to be paid from specified fund is nevertheless general legacy (Civ. Code 1910, § 3902).
Testamentary annuity payable from "net" income of estate, which widow accepted in lieu of dower and year's support constituted charge against corpus of estate (Civ. Code 1910 §§ 3899, 3902).
Equity will not cancel conveyance to creditor of estate by executor empowered to sell property at private sale without court order, absent allegation that transaction was unfair.
Absent insolvency of executor, allegations regarding executor's mismanagement authorized no equitable relief, since removal of executor and accounting prayed for were matters within ordinary's jurisdiction (Civ. Code 1910, §§ 3978, 4790).
Where petition failed to set forth meritorious case, and no request was made of trial court for opportunity to amend, and case was dismissed on general demurrer, privilege of amending was ended (Civ. Code 1910, § 6205).
Claim of error in not allowing time to amend could not be considered, absent assignment of error thereon.
1. Arbitrations are favored by the courts. They are intended by law to end litigation.
2. Executors may in good faith and with proper prudence submit to arbitrations all contested or doubtful claims for or against the estate, without notice to the legatees. The legatees are parties to the arbitration through the executor, who is designated by law to represent them and the interests of the estate. The award may be made the judgment of the court.
3. An award against an executor, in the absence of fraud, accident, or mistake, and until set aside, is conclusive in reference to the matters submitted upon the legatees and all parties thereto.
4. In a proper case, legatees, on failure or refusal of the executor to sue, may bring an equitable petition to set aside an award against an executor.
5. An award against an executor, after it is made the judgment of the court, may be set aside in equity for fraud, accident, or mistake. Fraud in the arbitrators or in either party obtaining the award would set it aside. An award obtained by imposition may be set aside.
6. An award against an executor cannot be set aside in equity on the ground that there was a good defense which the executor failed to make, unless it be shown there was accident, mistake, fraud, or corrupt complicity between the executor and the plaintiff. Mere failure to make defense will not authorize setting aside an award.
7. Equity will interfere to set aside an award only where the party had a good defense of which he was entirely ignorant or where he was prevented from making it by fraud or accident, or by the act of the adverse party unmixed with fraud or negligence on his part.
8. Fraud that will authorize a court in equity to set aside an award is fraud extrinsic or collateral to the matter tried by the first court, and not a fraud that was in issue in that suit; or it must be a fraud or deception practiced on the unsuccessful party by which he was prevented from exhibiting fully his case, and by which there never has been a real contest before the court on the subject-matter of the suit.
9. That the claim submitted was false, or that the award was induced by false swearing of the successful party, would not suffice to set aside the award.
10. A general charge of fraud may be assailed by general demurrer. Where fraud is relied on to set aside an award, the particular facts constituting the fraud must be stated. It is not sufficient to state the fraud in general terms, but such facts of fraud must be so set out that the court may see the illegality.
11. Exceptions to an award that are vague and loose and unaccompanied by the evidence before the arbitrators, and do not furnish full data from which the court may determine the mistake if any exists, are properly dismissed on demurrer.
12. To set aside in equity an award dependent in part upon consideration of the evidence before the arbitrators, a brief of such evidence, in the absence of good excuse to the contrary, should accompany the petition. A general statement that petitioner cannot set out such evidence, on account of want of sufficient information, because the evidence before the arbitrators was not stenographically reported, is not sufficient excuse for failure to furnish the evidence.
13. As a general rule, a gift of money to be paid from a specified fund is nevertheless a general legacy, and a failure of the fund does not destroy the legacy. However, a testator may so charge a money legacy upon a particular fund as to make the legacy follow the fate of the fund.
14. An annuity given in the will to the wife, to be paid monthly from the net income of the estate, which she accepts in lieu of dower and twelve months' support as provided in the will, does not abate because of insufficiency of income to pay it, but it becomes a charge against the corpus of the estate.
15. Where the will empowers the executor to sell at private sale the property of the estate without order of court, and directs the executor to pay the debts of the estate, and the executor conveys a portion of the property to a creditor to be applied in part payment of the debt, and it is so accepted by the creditor, equity will not cancel the conveyance, in the absence of allegation that the property was of greater value than the price agreed upon for the credit, or that the transaction was otherwise unfair.
16. In the absence of insolvency of the executor, allegations in the petition of losses on account of his negligently failing to prosecute and defend claims for and against the estate, of failure to collect the assets of the estate, of mismanagement and waste and unfitness on his part, with an allegation that he should be removed, and a prayer for an accounting, afford no ground for equitable relief, since there is a remedy at law for such matters in the court of ordinary, upon which court the settlement and administrations of estates is generally conferred.
17. This court is a court for review and correction of errors in the trial court. It would not be proper to allow here an amendment to the petition. However, it is within the jurisdiction of this court to award such order and direction to the cause in the court below as may be consistent with the law and justice of the case. On the hearing of a demurrer in the lower court, on request, time should be allowed for amendment. A refusal of such allowance would be subject to exception and review. Where the petition fails to set forth a meritorious case, and no request is made of the lower court for an opportunity to amend, and the case is dismissed on general demurrer, the privilege of amending is ended.
18. When the bill of exceptions contains no assignment of error for failure of the trial court to allow opportunity to amend, this court will not consider statements made in brief of counsel that they requested of the trial court time to amend, and that the demurrers were sustained without leave or authority to amend without notice to counsel.
Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.
Suit by R. J. Tinsley and others against Mrs. Fay Carroll Hilley Maddox and another. Demurrers to the petition were sustained, petition was dismissed, and plaintiffs bring error.
Affirmed.
Testator may charge money legacy...
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