West v. Downer

• Citation: 218 Ga. 235,127 S.E.2d 359
• Decision Date: 06 September 1962
• Docket Number: No. 21667,21667
• Parties: Lettie Downer WEST et al. v. J. T. DOWNER, Ex'r, et al.
• Court: Supreme Court of Georgia

Page 359

127 S.E.2d 359

218 Ga. 235

Lettie Downer WEST et al. v. J. T. DOWNER, Ex'r, et al.

No. 21667.

Supreme Court of Georgia.

Sept. 6, 1962.

Syllabus by the Court

Where, as in the instant case, the petition fails to show the plaintiffs are entitled to any of the relief prayed, the trial judge properly sustained a general demurrer.

Mrs. Lettie Downer West, Mrs. Fannie Belle Downer Paradise, Doyal Downer, Mrs. Lila Downer Cartledge and Mrs. Willie Lou Downer Ross filed their equitable petition in the Sumter Superior Court against J. T. Downer, Jr., individually and as executor of the estate of Mrs. J. T. Downer, Sr., T. R. Downer, and Richie Downer, Douglas Downer and Beth Elaine Downer, minor children of J. T. Downer, Jr. The petition sought to set aside a judgment of the Sumter Court of Ordinary probating, in solemn form, the will of Mrs. J. T. Downer, Sr., or in the alternative for specific performance of a contract between the seven children of Mrs. J. T. Downer, Sr., or to declare a constructive trust in favor of the plaintiffs, and for an injunction, accounting and general relief.

The material averments of the petition were: that testatrix, Mrs. J. T. Downer, Sr., was 81 years old and physically and mentally incapacitated; that on February 9, 1959, a commission so found and guardians were appointed for her; that she appeared by guardian before the State Board of Workmen's Compensation but was unable to testify due to mental and physical incapacity; that when she executed a purported will on April 1, 1960, the testatrix was not of sound and disposing mind and was incapable of making a valid will; that the defendants J. T. Downer, Jr., and T. R. Downer exercised undue influence over her; that all her seven children, sui juris and over 21, realized that Mrs. Downer, Sr., was incapable of making a will; that they, by written contract dated February 8, 1961, agreed to divide the bulk of the estate into seven equal shares and provided that upon a division of the estate the will of their mother was to be probated in solemn form with J. T. Downer, Jr., acting as executor; that this agreement 'lulled' the plaintiffs into not contesting the will while the defendants J. T. Downer, Jr., and T. R. Downer did not intend to comply with the agreement, but such was only a scheme, device and fraud to prevent the other children from contesting probate; that, relying implicitly on the agreement, the plaintiffs did not contest the probate in solemn form.

The petition further alleged: that under the agreement the land was to be sold within 12 months if a majority of the heirs agreed as to a fair price; that a majority did agree on a selling price, but the defendants J. T. Downer, Jr., and T. R. Downer refused to sell the land; that the two defendants later agreed to sell the lands for $16,750 but failed and refused to go through with the sale; that as a result the defendants have failed to recognize or comply with the agreement and have repudiated the same; that they have so stated; that 12 months have expired since the execution of the contract; that the defendants have perpetrated a fraud on the plaintiffs by reason of their confidential and fiduciary relationship and that equity should intervene to set aside the will and declare an intestacy. In the alternative, the defendants should be required to specifically perform the contract, for the remedy at law is inadequate, damages are incapable of exact computation and J. T. Downer, Jr., is insolvent. As a further alternative, J. T. Downer, Jr., should be declared a constructive trustee because it is manifest that the intention of the parties was that J. T. Downer, Jr., while holder of legal title, should have only a one-seventh beneficial interest and he can not enjoy the beneficial interest to the whole without violating established principles of equity. The plaintiffs further alleged that since the defendants had not complied with the will as to the use of soil bank checks that the plaintiffs have a complete accounting.

Attached as exhibits were the February 9, 1959, proceedings appointing Fannie Belle Paradise and T. R. Downer as guardians of Mrs. J. T. Downer, Sr., on the grounds of her incompetence to manage her business affairs; a copy of the workmen's compensation award on April 9, 1959, to Mrs. J. T. Downer, Sr., arising out of the death of her son, S. Colley Downer, which recited that 'she is physically incapacitated completely'; and the will of the testatrix executed on April 1, 1960. The will provided for the disposition of a 284 acre tract of land, some 55 acres of which went to three minor children of J. T. Downer, Jr., Richie, Douglas and Beth Elaine, and the remainder of the tract to T. R. Downer. It further devised some 56 and two-thirds acres comprising another tract to J. T. Downer, Jr., and provided that the soil bank checks from these lands would go to T. R. Downer to be used by him to pay off the mortgage indebtedness on the lands. The residue of the estate was given to six of the seven children of testatrix (excluding T. R. Downer), and J. T. Downer, Jr., was appointed sole executor and relieved from giving bond or making any return.

Other exhibits were a contract between the seven children dated February 8, 1961, four days after Mrs. J. T. Downer's death; the probate proceedings in solemn form commenced on February 8, 1961, which culminated on March 6, 1961, in the above mentioned will being admitted to record and established as the last will and testament of Mrs. J. T. Downer, Sr.; a 90 day option to sell 225 acres of the 284-acre tract made to L. M. Slappey on May 30, 1961, and signed by the five plaintiffs in this case; a 90 day option to sell the same 225 acres made to L. M. Slappey on August 8, 1961, and signed by J. T. Downer, Jr., and T. R. Downer.

The contract between the seven children (heirs) provided that its purpose was to divide the estate of the deceased mother into seven equal shares. J. T. Downer, Jr., was given in addition to his one-seventh undivided interest, the acreage devised to him in the will since 'while not having a record title to this land (he) is entitled to same by virtue of his labor and work and has actually paid the purchase price as well as the improvements thereon from his own proceeds.' In consideration of this real estate, J. T. Downer, Jr., agreed to take 'whatever action necessary to perfect title' to the land devised to his three children into the estate to be divided and that said land devised to the minor children 'shall constitute a part of the estate for the purpose of the one-seventh division.'

T. R. Downer for 'good and valuable consideration' relinquished his right to the land given him under the will, and for the further consideration of sharing in the seven way division including that portion of the residue from which he was excluded.

The seven children agreed to sell the real estate and improvements, subject to the opinion of a majority that a fair and acceptable price was offered, within twelve months of the date of the contract. They would hold the land intact for another twelve months if the majority did not approve of the price.

J. T. Downer, Jr., was to sell the personal property and place the proceeds into the 'estate.' Upon a division of the 'estate' as set out in the agreement the parties agreed for the will of Mrs. J. T. Downer, Sr., to be probated in solemn form and that J. T. Downer, Jr., qualify and act as executor distributing the entire proceeds of the estate according to the terms of the agreement in lieu of under the terms of the will. The express purpose and intent of the agreement was 'to divide the property of their mother into one-seventh equal interests in lieu of taking under the will.'

The plaintiffs later amended the prayers of their petition for specific performance by further asking that, if it were impossible for the defendants to convey all the land included in the contract, equity decree performance and grant compensation, under Code § 37-806, for such land as could not be conveyed by the defendants.

To the petition as amended the defendants filed their general and special demurrers, alleging in essence that the petition showed that the plaintiffs were fully cognizant of any invalidity of the will and had acquiesced in its probate in solemn form; that equity would not aid participants in an alleged fraud who had full knowledge of the facts; that the contract was likewise 'tainted' in that it sought to ignore or contravene the rights of minors.

After hearing argument of counsel, the trial judge issued an order sustaining the demurrers on each and every ground and dismissing the petition of the plaintiffs. From this ruling the plaintiffs bring to this court their bill of exceptions.

S. B. Lippitt, Albany, for plaintiff in error.

H. B. Williams, Americus, for defendant in error.

QUILLIAN, Justice.

1. The exceptions to the overruling of the general demurrer are predicated upon the rights of the plaintiffs under the will of Mrs. J. T. Downer, Sr., or arising out of the contract entered into with the defendants.

2. The demurrer should have been overruled if the averments of the petition showed the plaintiffs' right to any relief prayed, aliter, if the petition did not set forth a cause for such relief then the demurrer was properly sustained.

3. First, we shall consider the two prayers in reference to the will. The initial one is a prayer to set aside the probate of the will because it was obtained by fruad. The plaintiffs contend that the defendants perpetrated fraud and deceit upon them and upon the court of ordinary in which the will was probated; that the will was invalid because of the mental incapacity of the testatrix; that all the parties knew this; that the plaintiffs were lulled into not contesting the will because of their reliance on the good faith of the defendants in complying with the provisions of the contract.

As is clearly...