Treadwell v. Everett

• Citation: 195 S.E. 762,185 Ga. 454
• Decision Date: 17 February 1938
• Docket Number: 12146.
• Parties: TREADWELL et al. v. EVERETT et al.
• Court: Supreme Court of Georgia

195 S.E. 762

185 Ga. 454

TREADWELL et al. v. EVERETT et al.

No. 12146.

Supreme Court of Georgia

February 17, 1938

Error from Superior Court, Polk County; J. R. Hutcheson, Judge.

Suit by F. E. Treadwell and others, the children of testatrix' grandson, against J. E. Everett and others, executors of the testatrix, to recover such grandson's share wherein executors sought to deduct an alleged debt owing to testatrix by the grandson. To review a judgment for the executors, the plaintiffs bring error.

Affirmed.

Cecil D. Franklin, of Rockmart, for plaintiffs in error.

Mundy & Mundy, of Cedartown, for defendants in error.

Syllabus OPINION.

HUTCHESON Justice.

1. 'An advancement is any provision made by a parent out of his estate, for and accepted by a child, either in money or property, during his lifetime, over and above the obligation of the parent for maintenance and education.' Code, § 113-1013, And where money or property is transferred by a parent to his child, or for his benefit, the question whether the transfer 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. 851, and cit.

2. As a general rule, it is only in cases of intestacy that parties can claim advancements or be compelled to account for them. Brewton v. Brewton, 30 Ga. 416; Huggins v Huggins, 71 Ga. 66; Robinson v. Ramsey, 161 Ga 1, 129 S.E. 837; see, also, Code, §§ 113-1013, 113-1014, 113-1015, 113-1016, 113-1017. However, a testator may by will require an accounting for advancements (Jordan v Miller, 47 Ga. 346; McNeil v. Hammond, 87 Ga. 618, 13 S.E. 640) as well as for debts or loans (West v. Bolton, 23 Ga. 531; Nolan's Ex'rs v. Bolton, 25 Ga. 352).

3. Where a grandmother advanced money to her grandson and took therefor a note providing for the payment of interest, prima facie such note represents an indebtedness, and not an advancement; but this presumption is subject to be rebutted. West v. Bolton, supra (3); Cutliff v. Boyd, 72 Ga. 302(7), Barron v. Barron, supra, For the same reasons it is apparent that where a grandmother becomes surety for a grandson on a note payable to a third person, providing for the payment of interest, and upon the failure of the grandson to pay the notes when due the grandmother pays the same and has the note transferred to her as surety, such a transaction upon its face has all the attributes of the relationship of debtor and creditor between the grandmother and the grandson, and such note prima facie represents an indebtedness rather than an advancement.

4. Where the grandmother in her will, after providing for the payment of her doctor's bills, funeral expenses, just debts, and making certain specific bequests, declares that her six grandchildren shall share equally in the balance of her estate 'provided, however, that the children of my grandson [naming the one whose notes she holds] shall have charged against his share the amount of $_____ which I have advanced to him during life, and his children shall account for said amount in a settlement of my estate. Accounting for this amount, his children shall have a one-sixth interest in the balance of my estate,' such provisions of the will do not change the debts of the...