Opinion
16897.
JANUARY 13, 1950. REHEARING DENIED FEBRUARY 17, 1950.
Receiver, etc. Before Judge A. M. Anderson. Crawford Superior Court. August 26, 1949.
Jule A. C. Felton III, for plaintiffs in error.
Culpepper Culpepper, contra.
1. The trial court did not commit error in overruling the general demurrer.
2. The evidence in this case was not sufficient to support the verdict.
3. No error appears in the special grounds of the motion for new trial.
No. 16897. JANUARY 13, 1950. REHEARING DENIED FEBRUARY 17, 1950.
Lily Mae Jackson, individually and as natural guardian for Eva Mae Jackson, Flossie Mae Jackson, and Loisteen Jackson, filed suit against Handy Jackson, individually and as executor of the will of Sam Jackson, and Mary Ella Kendrick. Henry Jackson and Sam Jackson Jr. were subsequently made parties defendant. The petition, as amended, in substance alleged that Lily Mae Jackson was the wife of Sam Jackson, and the other named plaintiffs were the minor children of Sam Jackson and Lily Mae Jackson; and that Handy Jackson was executor of the will of Sam Jackson. A copy of the will was attached to the petition.
The will provided for specific bequests in named amounts to various parties, including the children of the deceased by a former marriage, and the minor children of the deceased, who were named as plaintiffs, and $25 to Lily Mae Jackson, "which bequest is in lieu of dower and years support." It was provided that, in the event any of the legatees named should contest the will, they should thereby forfeit any devise made to them under the will. It was provided that the estate, in so far as the land was concerned, should be kept together until the youngest child reached the age of 21, at which time "I authorize my executor to divide said land in kind among the surviving heirs." The will then provided: "All the rest and residue of my property, real, personal, and mixed, of whatever kind and wherever situated, I give and devise to my children, Henry J. Jackson, Sam Jackson Jr., Eva Mae Jackson, and Flossie Mae Jackson, share and share alike."
It was alleged: that the value of the estate was approximately $25,000; that the executor was relieved of giving bond; that the petitioners had asked the executor to apprize them of the amount of money left by the deceased, and he had refused to give them this information; that money belonging to Sam Jackson is deposited, either in his name or the name of Mary Ella Kendrick, his sister, in various banks and post offices; that the petitioners have no way of ascertaining these amounts; that Lily Mae Jackson is entitled to a year's support for herself and the three minor children, and dower, but she is unable to determine, by reason of the executor's refusal to give her information, how much money or property belonging to the estate is in the accounts of the executor; that specific amounts devised in the will have been paid by the executor, except the petitioners refuse to accept the amounts devised to them; that the petitioners are entitled to have Handy Jackson, as executor, put under bond in the sum of at least $25,000, for the reason that he is given wide discretion under the will, entitling him to sell all the property; that the executor has disposed of all the furniture, a portion of which was specifically devised to the minor children, who are plaintiffs in this petition; that he has notified the plaintiffs of his intention to cut and remove the timber from the land, and is now actually cutting and removing said timber; that Mary Ella Kendrick has withdrawn from the Citizens Trust Company of Atlanta, Georgia, the sum of $11,050.58, which was a portion of the estate of Sam Jackson; that Sam Jackson Jr., Mary Ella Kendrick, Henry J. Jackson, and Handy Jackson all attempt to perpetrate a fraud upon the petitioners by withholding from the estate of the deceased this sum of money, which was deposited by the deceased in the name of Mary Ella Kendrick for the purpose of concealing the money from the creditors and immediate family of Sam Jackson, but that the account was at all times during his lifetime under the control of the deceased. The petition as finally amended prays for the appointment of a receiver to take charge of the property belonging to the estate; that Handy Jackson be restrained from disposing of any property belonging to the estate; that a court of equity intervene and take charge of the estate; that all of the defendants be enjoined from disposing of any property belonging to the estate, or from withdrawing from any bank, post office, firm or corporation any money or evidence of property belonging to the estate; that the executor, if he continues to act as such, be required to give a bond in the sum of $25,000, and that the petitioners have an accounting.
The defendants demurred generally and specially to the petition as amended. The demurrers were overruled. The exception to this ruling was preserved pendente lite.
The trial court in the meantime, having determined that the appointment of a receiver was necessary, tendered the appointment to Handy Jackson, "who stated in open court his inability to comply and accept." Thereupon the court appointed C. L. Shepard receiver of the estate of Sam Jackson, and required him to give bond in the sum of $25,000.
Subsequently, the case was tried before a jury, when the only question submitted to them was whether or not the deposit of $11,050.58 in the Citizens Trust Company in the name of Mary Ella Kendrick was the property of Mary Ella Kendrick or of Sam Jackson at the date of his death. The jury returned a verdict finding the money thus deposited to be the property of Sam Jackson at the date of his death. A motion for new trial, which was filed and amended, was overruled. The exception here is to the order overruling the motion for new trial as amended and on the exceptions pendente lite.
1. The first question presented is whether or not the general demurrer to the petition was properly overruled. The Code provides: "Equity will not interfere with regular administration of estates, except upon the application of the representative, either, first for construction and direction, second for marshaling the assets; or upon application of any person interested in the estate where there is danger of loss or other injury to his interests." Code, § 37-403. Section 113-2203 provides: "A court of equity shall have concurrent jurisdiction with the ordinary over the settlement of accounts of administrators." Section 37-122 provides: "Where law and equity have concurrent jurisdiction, whichever first takes jurisdiction shall retain it, unless a good reason shall be given for the interference of equity." As was pointed out in Hoffman v. Chester, 204 Ga. 296-304 ( 49 S.E.2d 760), confusion has arisen over the application of these Code sections.
If the petition in this case can be maintained, it, of course, must be under the provision of the last clause of Code § 37-403. The plaintiffs in the court below must qualify as persons "interested in the estate." The wife of the deceased meets this requirement by alleging that the executor refuses to give her any information concerning the money or property belonging to the estate, which information she must have in order to determine the question whether or not to accept the bequest contained in the will in lieu of dower and a year's support for herself and minor children. The minor children, who were plaintiffs in the court below, are persons "interested in the estate" for the reason that, under the terms of the will, they participate in the residue of the estate after specific bequests have been satisfied; and this has been done as to all persons provided for in the will with the exception of the plaintiffs in the court below. The petitioners in the court below are persons "interested in the estate."
The next question is: Was there danger of loss or other injury to their interest? The petition alleges that Sam Jackson Jr. and Henry Jackson, who received a portion of the $11,050.58 withdrawn by Mary Ella Kendrick from the Citizens Trust Company, are both insolvent. The petition alleged "that neither Handy Jackson nor Mary Ella Kendrick are insolvent, but that they are of limited means and do not have assets in the amount equal to the amount set out in this petition." It was alleged that the executor had disposed of the personality bequeathed to two of the plaintiffs, was actively cutting and removing the timber from the land belonging to the estate, and had advised the plaintiffs of his intention of removing all timber from the land; that he and the other defendants had divided among themselves $11,050.58 belonging to the estate; and that the executor was, by the will, relieved from giving any bond, and was therefore not under bond. These allegations, reasonably construed, show that the petitioners have an interest in the estate of the deceased and a right to share therein, danger of loss, and inability to protect such right by ordinary legal methods of procedure.
True it is that an executor, although relieved of giving bond by the terms of a will, may, nevertheless, upon a proper showing, be required to give bond. Powell v. Smith, 178 Ga. 737 ( 174 S.E. 341). Under the allegations of the petition in this case, this procedure does not adequately protect the interest of the plaintiffs for the reason alleged, that the executor had disposed of personal property, converted property to his own use and to the use of the other defendants, and was then cutting and removing valuable timber from the property. Under these allegations, the plaintiffs were entitled to prompt relief. See Crawford v. Crawford, 139 Ga. 535 ( 77 S.E. 826); Spooner v. Bank of Donalsonville, 159 Ga. 295 ( 125 S.E. 456); Jones v. Proctor, 195 Ga. 607 ( 24 S.E.2d 779); McCord v. Walton, 192 Ga. 279 ( 14 S.E.2d 723). It was not error to overrule the demurrer to the petition.
2. We now consider the general grounds of the motion for new trial. The sole question submitted to the jury was whether or not the sum of $11,050.58 on deposit in the Citizens Trust Company of Atlanta, Georgia, in the name of Mary Ella Kendrick at the time of the death of Sam Jackson was the property of Sam Jackson at his death. The jury found the deposit to be the property of Sam Jackson at the time of his death.
This money was deposited several months before the death of Sam Jackson. At the time the deposit was made, he and Mary Ella Kendrick were both present in the bank. The amount originally deposited was something over $12,000. On the date of the deposit, Sam Jackson withdrew from his account on deposit with the bank a similar amount of money. The money was actually deposited by Mary Ella Kendrick, was authorized was present. No one other than Mary Ella Kendrick was authorized to withdraw the money from the bank, but she did have that right, the money having been deposited unconditionally in her name.
Prior to the death of Sam Jackson, two withdrawals from the account were made by checks signed by Mary Ella Kendrick. She is the sister of Sam Jackson. Whether the account was a savings account or a commercial checking account is not clear from the evidence. The president of Citizens Trust Company inferred in his testimony that the account was a savings account by testifying: "These checks were made payable to cash. Presumptively, she got the cash on those checks. A savings customer has a right to make a withdrawal. I mean in cash." He was in this testimony referring to checks by virtue of which Mary Ella Kendrick withdrew the $11,050.58 from the bank after the death of Sam Jackson. The evidence did disclose that no money at any time was withdrawn from the account except by check signed by Mary Ella Kendrick. It is not at all clear from the evidence whether the account was a savings account or a commercial checking account.
There was testimony to the effect that Sam Jackson, after the money was deposited to the credit of Mary Ella Kendrick, several times made the statement that he had given this money to his sister; that he deposited the money to her credit; and that it was her money. The evidence disclosed no other statements made by him in contradiction of these statements.
"To constitute a valid gift, there shall be the intention to give by the donor, acceptance by the donee, and delivery of the article given or some act accepted by the law in lieu thereof." Code, § 48-101. "If the donation shall be of substantial benefit, the law will presume the acceptance, unless the contrary shall be shown." § 48-102. "Actual manual delivery shall not be essential to the validity of a gift. Any act which shall indicate a renunciation of dominion by the donor, and the transfer of dominion to the donee, shall be a constructive delivery." § 48-103.
This being a transaction between brother and sister, the presumption is in favor of a gift. § 108-116. A very fine discussion of this question and a collection of the authorities will be found in Clark v. Bridges, 163 Ga. 542 ( 136 S.E. 444). "Where a deposit-book issued by a savings bank is delivered with appropriate words of gift by the depositor, with the intention to give to the person to whom it is delivered the deposits entered in the book, this is sufficient to constitute a valid gift of the deposits, without assignment or transfer in writing." Wade v. Edwards, 23 Ga. App. 677 ( 99 S.E. 160).
The facts stated in the first part of this division of this opinion, applied to the above rules of law, not only raise a presumption of a gift by Sam Jackson to his sister Mary Ella Kendrick of the $11,050.58 in question, but furnish all the facts essential to establish a gift.
The only evidence in the record relied upon to disprove the fact of a gift is that, on one occasion before the death of Sam Jackson, Mary Ella Kendrick drew a check on the account that was endorsed by Sam Jackson, and he used the proceeds of this check to buy a farm, title to which was taken in his name. If the money was hers — and it was under the above testimony — she had a right to give any part of it back to her brother; and the fact that she did so, did in no way disprove the original gift. After Sam Jackson died, Mary Ella Kendrick withdrew the balance of the account and gave it to a son of Sam Jackson. This she also had a right to do, and the fact that she did, in no way is contradictory to the original gift.
The only other evidence relied upon to disprove the gift was contradictory statements made by Mary Ella Kendrick after the death of Sam Jackson — such as, that she never had the bank book, did not know that he had given her the money, that she never had a bank account in Atlanta, and statements of similar import. It appears that these statements were made by an old, illiterate, uneducated woman after she had been taken into custody by the sheriff of the county and a representative of the G. B. I. from Atlanta. Just what she was accused of, or exactly why she should have been arrested, does not appear from the record, but she was arrested and carried to the sheriff's office and interrogated, when and where, it was testified by the officers, she made these conflicting statements. She testified that she had never been in jail and was "afraid of that jail" and she did not remember what she said. Most of these alleged contradictory statements were proven not to be true by the officers and employees of the bank.
We do not think that these unsupported contradictory statements are sufficient to carry the burden of establishing that the transaction was not a gift, and particularly so under the circumstances, by virtue of which these statements were obtained.
3. The first ground of the amendment to the motion for new trial complains because one of the attorneys for the plaintiffs in the court below was permitted, over objection, to testify to a transaction with the deceased, and that this should not have been allowed for the reason that the fee of the attorney was contingent. Nothing appears in the record about whether or not the fee was contingent. Of course, this court cannot consider this contention.
4. The second ground of the amendment to the motion for new trial complains because it is alleged that the trial court did not properly charge the jury as to the burden of proof. We do not consider the charge, taken as a whole, subject to this criticism.
From what has been said in division 2 of this opinion, it follows that the denial of the motion for new trial was error.
Judgment reversed. All the Justices concur.