Young v. Freeman

• Decision Date: 14 July 1922
• Docket Number: 2776,2777.
• Citation: 113 S.E. 204,153 Ga. 827
• Parties: YOUNG v. FREEMAN. FREEMAN v. YOUNG.
• Court: Georgia Supreme Court

113 S.E. 204

153 Ga. 827

YOUNG v. FREEMAN.

FREEMAN v. YOUNG.

Nos. 2776, 2777.

Supreme Court of Georgia

July 14, 1922

Syllabus by the Court.

Where one named as an executor in the will of the deceased testator propounds the instrument for probate in solemn form, without having first propounded it in common form or without being cited by the heirs or others entitled to do so, and a caveat raising the issue of devisavit vel non is filed thereto, and upon the final hearing of this issue the will is set aside the propounder is not entitled to attorney's fees and costs incurred in prosecuting the suit.

(a) It appearing that the executor named in the will was not called upon before he offered the will for probate in solemn form to so probate it, the mere fact that in the caveat filed to the probate of the will in solemn form the caveators demanded a probate in this form would not take the case out of the rule laid down above, as the proceedings to probate were not instituted in obedience to or in pursuance of any demand made by the heirs or others having such interest in the estate as to demand probate.

Certain of the exceptions to the findings on the questions of fact as, for instance, the first exception of fact wherein the auditor reports that he finds "that $3,000 is a reasonable fee for the services rendered by the attorneys of Mr. Freeman, as propounder of the will and as temporary administrator," are controlled by the ruling on the first exception to the finding on the question of law.

Upon consideration of the evidence, it does not appear that the court erred in overruling the second and third exceptions to the findings of fact, the findings being, in substance, that the temporary administrator was not negligent in attending to the renting of the farm lands of the estate, and that he was not liable for the loss, injury, or destruction of any of the farming implements or tools or such other item of personal property.

Plaintiff excepted to the following finding included in the findings of law of the auditor: "I find that while the temporary administrator was not permitted by law to pay debts of the estate of J. G. Young, still, if he did so and the debts which he paid were legal charges against the estate, he would be subrogated to the rights of these creditors whose claims he paid, and would be entitled to set off such claims against the permanent administrator in a suit brought by the permanent administrator for a settlement of the affairs of the estate." And exception is taken to the judgment of the court overruling this exception. While under the application of the strict rules of law the defendant might not be entitled to the application of the doctrine of subrogation, nevertheless this was a suit in equity, brought by the defendant in error, the permanent administrator; and the case being one in equity, all the matters involved should be disposed of upon equitable grounds; and the auditor properly, therefore, allowed the temporary administrator a credit for the amounts paid out as debts of the estate of the testator, where the debts thus paid were legal charges against the estate. Of course, the duties of the temporary administrator are plainly stated in our statutes to be the collection of debts and the preservation of the estate. He has not the right, as a matter of law, to pay off the debts of the estate; but where he has done so, and the permanent administrator in an equitable suit is seeking to have the temporary administrator turn over the estate to him and to have an equitable accounting, it is proper that complete equity should be done, and in this case the temporary administrator, under application of equitable principles, was entitled to a credit for the amounts expended in meeting and discharging legal charges against the estate, as well as for amounts expended which tended to preserve the estate.

The court overruled the exceptions to the following finding of the auditor: "In addition to the above items I find the following amounts were paid by the temporary administrator for liabilities incurred by Mr. J. G. Young in his life, or by the temporary administrator in operating the farm and in preserving the estate. I further find that these items are correct and legal charges against the estate, and that the temporary administrator is entitled to credit for them"--following which is a list of the items referred to. In view of the ruling made in the foregoing headnote, and the fact that there is some evidence to support this finding of fact, the court did not err in overruling the exceptions to the last-quoted finding.

Under the principle laid down in the ruling upon the question of attorney's fees incurred in probating the will in solemn form, the temporary administrator was not authorized to pay out costs and have the same allowed him as a credit in a settlement with the permanent administrator.

It does not appear that the court abused its discretion in overruling the other exceptions to the findings of fact, as it cannot be said that they were entirely without evidence to support them.

The cross-bill of exceptions in this case is dismissed, because it contains no sufficient assignment of error to any ruling made by the court below.

Error from Superior Court, Troup County; C. E. Roop, Judge.

Suit by Frank Young, administrator, against J. W. Freeman. Judgment settling defendant's account as temporary administrator and plaintiff brings error, and defendant brings a cross-bill of exceptions. Judgment reversed, and cross-bill dismissed.

On the 20th day of August, 1914, James G. Young, of Troup county died, leaving a will in which his property was distributed under the terms of said will among several different persons. J. Wid Freeman was named in the will as the executor. On August 22 J. Wid Freeman filed an application to probate the will in solemn form. Caveat was filed by the heirs, raising the issue of devisavit vel non. Thereafter Freeman was appointed temporary administrator, and qualified as such, executing the bond required by the ordinary. As temporary administrator he took charge of the estate of the decedent, consisting of lands and personal property. The litigation over the will continued during a period of three or four years. On the final trial of the issue raised by the caveat the caveators prevailed; and in April, 1918, the plaintiff in error, Frank Young, was appointed permanent administrator, and instituted a suit against Freeman for accounting and settlement. Freeman filed his plea and answer. The case was referred to an auditor, who in due course made his report, and to this report Young, administrator, filed exceptions of law and fact. To the overruling of his exceptions Young filed a bill of exceptions, and brought the case to the Supreme Court for review.

E. A. Jones, L. L. Meadors, M. U. Mooty, and Hatton Lovejoy, all of La Grange, for plaintiff in error.

W. C. Wright and A. H. Freeman, both of Newnan, Sidney Holderness, of Carrollton, and D. J. Gaffney and A. H. Thompson, both of La Grange, for defendant in error.

BECK, P.J. (after stating the facts as above).

1. A part of the auditor's first findings of law which is excepted to is as follows:

"I find in this case that Mr. Freeman, acting by virtue of the authority given him by the will of Mr. Young, naming him as executor of his will, presented the will for probate, and that a caveat was filed to the will, and pending the decision and termination of this issue and growing out of this litigation certain costs were incurred for attorney's fees and court costs; that Mr. Freeman as propounder of the will would be entitled to be reimbursed for such expenses, provided they are reasonable and just charges, and provided further that he acted in good faith and to the best interest of the estate. This would be true even though on a final hearing the will was set aside.

Especially is this true when Mr. Freeman appeared and offered to probate the will in common form, and the ordinary refused this request, but instead appointed him temporary administrator, and also when it further appears that the caveat called upon the executor to prove the will in solemn form. Mr. Freeman showed his willingness and desire to prove the will in common form when he appeared before the ordinary in person and made a verbal request to probate the will in common form, and the ordinary told him that it would be unnecessary for him to make a formal written application to do this, as he would not allow this to be done."

The first paragraph of the above is excepted to on the ground that it is contrary to law, and because the person named as executor and who is also a beneficiary under the will could not employ counsel, attempt to probate the will over the caveat by the children of the deceased, lose the case in the trial court, then litigate further, and after an adverse decision make the attorney's fees and costs chargeable upon the estate of the testator. The foregoing exception to the auditor's finding of law was overruled, and error is assigned upon this ruling of the court.

We are of the opinion that the exception to the auditor's finding is grounded upon our statutes and the decisions of this court interpreting those statutes. It is alleged in the answer of the defendant that he offered to probate the will in common form, and that the ordinary refused; but we infer further from the pleadings of the defendant that the application to probate in solemn form had already been made. The paragraph of the defendant's answer pleading the facts in reference to the probate is as follows:

"On or about the ______ day of August, 1914, the said J. G. Young died, leaving a will, in which will the said J. Wid Freeman was named as the executor.

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