Opinion
16375.
OCTOBER 11, 1948.
Equitable petition. Before Judge Sloan. Stephens Superior Court. June 12, 1948.
Thomas C. Burton and George L. Goode, for plaintiffs.
Owen Gross and Kenyon, Kenyon Gunter, for defendants.
1. Where a judge of the superior court overruled exceptions to an auditor's report on February 12, 1947, and error was assigned on such rulings for the first time in an amendment to a motion for a new trial filed on June 5, 1948, such assignment of error was too late to bring under review the correctness of the ruling complained of.
( a) Under the above ruling, the eight grounds added by amendment to the original motion for a new trial can not be considered.
2. Where services are rendered by an adult daughter in attending to the business of her mother in the conduct of a hotel owned by the latter, and where such services have a value materially in excess of the support received from the mother and thereby tend to enhance the mother's estate, the jury could find from the evidence that, considering all the circumstances, both the mother and the daughter contemplated that the latter should receive compensation for the services rendered; especially so in view of the character of the services rendered.
3. The verdict on all issues was authorized by the evidence, and the court did not err in refusing a new trial.
No. 16375. OCTOBER 11, 1948.
Mrs. J. O. Freeman died testate, a resident of Stephens County, on August 18, 1945. Items 3, 6, and 7 of her will were as follows: 3. "I desire and direct that the Albermarle Hotel be continued in operation for a period not to exceed four years after my death, to be operated by my executrix hereinafter named, the exact term or period of such operation to be left to the discretion of my said executrix. In this connection, I desire and direct that my executrix pay out of the net profits of the operation of said hotel the sum of $50 per month to my following named children, to wit: J. F. Freeman, B. D. Freeman and Theo Freeman. These payments are to be continued as long as my executrix operates said hotel under these terms, and are conditioned upon her making such amounts as a net profit. Any and all amounts netted from such operation of said hotel over and above these payments are hereby given and devised to my daughter, Mrs. Lou Mae Collier." 6. "After the expiration of four years from my death, or sooner if my executrix deems advisable, I desire and direct that all of my property of every kind and character be sold by my executrix and the proceeds divided equally between my four children, to wit: J. F. Freeman, B. D. Freeman, Theo Freeman, and Mrs. Lou Mae Collier, or in the event of the death of either of these, before my death, their child or children per stripes. I specifically direct that these four shares of my estate be paid to those entitled to the same under this item at the rate of $100 per month per share. I express the desire that one of the above-named children purchase the Albermarle Hotel when sold, as I would like for it to remain in the family if possible. To this end I suggest that my four children, as named above, agree, if possible, on a date and terms of sale for the Albermarle Hotel that will enable one of them to purchase same." 7. "I hereby name, constitute, and appoint my daughter, Mrs. Lou Mae Collier, as the sole executrix of this my last will and testament, and expressly relieve her from giving any bond and from making any returns to any court whatsoever, or to the ordinary of any county. I expressly confer upon her full authority and power to sell any and all of my property, both real and personal, at public or private sale, with or without notice or advertisement, and without any order of court and to make good and sufficient conveyances and title to the purchasers or purchaser, holding the proceeds of any sales to the uses provided for in this will. I further expressly authorize and empower my said executrix to sell any of my property under such terms, cash or otherwise, as she deems proper and advisable."
The will was probated in solemn from and the nominated executrix qualified as such on October 2, 1945. By options dated "this ______ day of ___________________, 1945," Theo D. Freeman, J. F. Freeman, and B. D. Freeman each bound himself to sell to Mrs. Lou Mae Collier his "one-fourth undivided interest in and to the estate of Mrs. J. O. Freeman" on or before January 1, 1946, for $12,000. According to deed dated December 4, 1945, each of the three Freemans just named conveyed to Mrs. Lou Mae Collier what was described as the Albermarle Hotel property, with all equipment, and two vacant lots, in Stephens County. The deed contained this recital: "This deed is made to convey to Mrs. Lou Mae Collier, my one-fourth interest in and to all of the assets, both real and personal, of the estate of Mrs. J. O. Freeman, deceased, and is executed as a full and complete release of my interest in said estate." By receipt dated December 4, 1945, each of the three Freemans acknowledged having received $12,000 from Mrs. Collier "in full, entire, and complete satisfaction of all the right, title, claim, interest, property or demand I now have, or might have, in and upon the estate, both real and personal, of said Mrs. J. O. Freeman, deceased, and said Mrs. Lou Mae Collier, as executrix, as aforesaid, of any and all further claims on my part against said estate."
On December 6, 1945, Mrs. Collier, as executrix, executed to M. Green and John S. Sosebee a deed to the Albermarle Hotel property, "also all equipment of every description contained in said building." This deed recited a consideration of $10,000 "and other considerations," but the purchase-price paid to the executrix was $70,000 cash.
On January 18, 1946, Theo D. Freeman, J. F. Freeman, and B. D. Freeman, through their attorneys, presented to the Judge of the Superior Court of Stephens County an equitable petition naming as defendants Mrs. Lou Mae Collier, individually and as executrix, her husband, A. B. Collier, and The Bank of Toccoa. In this petition numerous allegations of fraud and deceit were made as to the conduct of Mrs. Collier and her husband respecting the handling of the estate, securing deeds from the plaintiffs, making sale of the hotel and other matters. The petition sought among other relief the removal of Mrs. Collier as executrix, appointment of a receiver, administration of the estate in equity, and impounding of bank accounts of Mrs. Collier. The judge granted certain restraining orders as prayed, and ordered an interlocutory hearing. At such hearing, after the introduction of evidence and by consent of the parties, the following order was entered:
"Interlocutory trial in the above matter coming on for hearing on this date, and after the introduction of evidence, the parties hereto have agreed:
"That the purported conveyances from plaintiffs to Mrs. A. B. Collier, one of the defendants, is ineffectual and that the sale of the hotel property belonging to the estate of Mrs. J. O. Freeman is to be treated as an asset of said estate, to be distributed according to the terms of the will of the said Mrs. Freeman, and that the sole issues to be determined in this suit will be an accounting by the executrix, the allowance or disallowance of claims against the estate, and the determination of amounts due to the devisees under the will; and
"It appearing to the court that this accounting can best be had by the appointment of an auditor, and all parties consenting thereto, it is
"Considered, ordered and adjudged that the Hon. George G. Allen be and he is hereby appointed as auditor to hear said case, to make complete findings and report same to the court as provided by law; said auditor to have full and complete powers as conferred upon such auditors by law.
"This February 15, 1946."
Mrs. Collier, as executrix and as an individual, filed demurrers to the petition. She also filed an answer in each capacity. Paragraph 50 of her answer as an individual alleged: "That the estate of Mrs. J. O. Freeman is indebted to defendant in the sum of $4800 for services rendered as manager of the Albermarle Hotel for a period of sixteen months immediately prior to January 1st, 1943, and this defendant asks a lien against said estate for said amount." Paragraph 47 of her answer as executrix asserted a claim for $6400, as the value of furniture "belonging to Colliers" sold with the hotel, and a claim for "repairs to hotel (Mrs. A. B. Collier, $2531.22)." It appeared that Mrs. A. B. Collier and Mrs. Lou Mae Collier were the same person. The plaintiffs filed separate demurrers attacking paragraphs 50 and 47 of Mrs. Collier's answers as just stated.
Mrs. Collier also claimed as an expense $2000 attorneys' fees due by her as executrix.
The auditor, after hearing evidence, made his report, the concluding paragraph of which was as follows: "Therefore, there is a balance left in the hands of the executrix of the sum of $6215.77, subject to distribution, and upon the payment of which by the executrix will bring to a close the administration of said estate." Exceptions of law and of fact were filed to the report by the plaintiffs and by Mrs. Collier as an individual and as executrix. As the result of rulings on these exceptions, the judge submitted to the jury four questions to be answered, to wit: 1. The value of the furniture which Mrs. Collier contended she bought and placed in the hotel. 2. The value of repairs claimed to have been made to the hotel by Mrs. Collier. 3. The amount to be allowed to attorneys representing the Freeman estate. 4. The claim of Mrs. Collier for services rendered in operating the hotel for sixteen months immediately prior to January 1, 1943. The jury's answers were: the value of furniture, $5400; value of repairs to hotel, $2382.66; attorneys' fees, $1000; for services, $4800. Thereupon, the court entered a decree in conformity with the jury's answers to questions submitted ($800 of the finding for services being written off by Mrs. Collier), and with rulings made by him, in favor of the executrix. In this decree it was held: "The above-stated claims of Mrs. Lou Mae Collier against the estate of Mrs. J. O. Freeman being hereby established, no funds or assets are left in the hands of Mrs. Lou Mae Collier as executrix of the estate of Mrs. J. O. Freeman for distribution; and it is adjudged that neither Theo D. Freeman nor J. F. Freeman nor B. D. Freeman nor either of them are or shall be entitled to any further sum from said estate."
The plaintiffs filed a motion for a new trial on the general grounds, which was later amended by adding eight additional grounds numbered four through eleven. The only assignments of error in the first seven of these grounds are upon rulings of the court on exceptions filed by the plaintiffs to the auditor's report, which rulings were made February 22, 1947; the amendment to the motion for new trial having been allowed and ordered filed June 5, 1948; no exceptions pendente lite having been taken. The last ground, numbered eleven, was as follows: "Because the court erred in submitting to the jury as questions of fact, on the exceptions filed by Mrs. Lou Mae Collier as executrix, for furniture, for repairs, for attorneys' fees, and for services, and also in submitting to the jury as questions of fact the exceptions filed by Mrs. Lou Mae Collier as an individual, hereto attached as exhibit H; the exceptions of fact filed by Mrs. Lou Mae Collier as executrix being hereto attached and marked exhibit I and made a part of this amended ground. Movant avers that the claims for furniture, repairs, attorneys' fees, and services were not sufficiently established in the evidence before the auditor to authorize their submission to the jury as questions of fact, and it was error for the court to submit the exceptions complained of in this ground to the jury for their consideration."
The motion for a new trial as amended was overruled. In the bill of exceptions sued out by the plaintiffs, the only exception is to the judgment overruling the motion as amended.
1. The rulings on which error was assigned in the grounds of the motion for new trial numbered eight through ten, finding against exceptions filed by the plaintiffs to the auditor's report, were made on February 11, 1947. No exceptions pendente lite were taken thereto. The amendment to the motion for new trial containing these assignments of error was approved and order filed on June 5, 1948. Under this state of facts, these assignments of error can not be considered. "Bills of exceptions shall be tendered to the judge who presided in the cause within 20 days from the date of the decision complained of." Ga. L. 1946, Adjourned Sess., pp. 734-35, Code (Ann. Supp.), § 6-902. "Exceptions tendered before the final judgment, for the mere purpose of being made a part of the record, shall be certified to be true by the judge and ordered to be placed on the record. Such exceptions shall be tendered within 20 days from the date of the order, decision or ruling complained of." Ga. L. 1946, Adjourned Sess., p. 738, Code (Ann. Supp.), § 6-905. Callan Court Co. v. Citizens Southern Nat. Bank, 184 Ga. 87 (1) ( 190 S.E. 831); Beavers v. Williams, 199 Ga. 113 (1) ( 33 S.E.2d 343).
As to the last ground of the motion for new trial, numbered eleven, it will be noticed that the only claimed error in submitting the four questions to the jury was "that the claims for furniture, repairs, attorneys' fees, and services were not sufficiently established in the evidence before the auditor to authorize their submission to the jury as questions of fact, and it was error for the court to submit the exceptions complained of in this ground to the jury for their consideration." This ground amounts only to an assignment of error on the ruling of the judge in sustaining exceptions of fact filed by the defendant, and under the ruling made in the preceding paragraph came too late.
2. It is contended by the plaintiffs that the evidence in this case failed to show either an express or an implied contract or agreement on the part of the testatrix to recompense the defendant for services rendered. Code § 3-107 provides: "Ordinarily, when one renders services or transfers property valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof; but this presumption does not usually arise in cases between very near relatives." In order to sustain a recovery by a child against a parent for services in the nature of care and attention such as are usually bestowed because of a natural sense of duty and affection arising out of the relationship, it must affirmatively appear that the services were performed under an express contract that the parent would pay for them, or the surrounding circumstances must plainly indicate that it was the intention of the parties that compensation should be paid. Hudson v. Hudson, 90 Ga. 581 ( 16 S.E. 349); O'Kelly v. Faulkner, 92 Ga. 521 ( 17 S.E. 847). But where services are rendered by an adult daughter in attending to the business of her mother in the conduct of a hotel owned by the latter, due to the mother's infirmity, and where the services have a value materially in excess of the support received from the mother and thereby tend to enhance the mother's estate, the jury "could find from the evidence that, considering all the circumstances, both the [mother] and the daughter contemplated she should receive compensation for the services rendered; especially so in view of the character of services rendered." Phinazee v. Bunn, 123 Ga. 230, 231 ( 51 S.E. 300); Edwards v. Smith, 42 Ga. App. 730 ( 157 S.E. 348). See also Murrell v. Studstill, 104 Ga. 604 ( 30 S.E. 750); Wall v. Wall, 15 Ga. App. 156 ( 82 S.E. 791). Under the above authorities and the undisputed testimony of the defendant, the jury were authorized to find in her favor for sixteen months' services at $250 per month. The verdict was for $4800, but the defendant voluntarily wrote off $800, and the final decree credited her with $4000 for this item.
Referring further to the general grounds of the motion, it appeared from the evidence that the testatrix, Mrs. J. O. Freeman, herself operated the Albermarle Hotel for several years prior to 1943, but that during the last several years of that time she was in bad health. From January 1, 1943, until the time of her death, her daughter, the defendant, leased the hotel from her mother, paying her $450 per month "as long as the camp was here, when she reduced it to $400," according to testimony of the defendant. She further testified: "On January 1, 1943, I leased the hotel from my mother and this lease continued until her death. Prior to January 1, 1943, I worked at the hotel, my duties were seeing after everything, all the buying, registering guests, seeing that the meals were on time, paying the employees and doing about everything. I was in this capacity for years, during the years 1942, 1941 and on back. . . I did not receive any salary for this work, but lived at the hotel and worked for my mother and her property. My mother and the other members of the family received the benefits of my work at the hotel; my mother knew I was doing the work. I consider this work at the hotel and service worth at least $250 per month over and above the keep for myself and family. After January 1, 1943, and during the period I operated the hotel under lease from my mother we made repairs to the hotel. . . My mother knew I was making these repairs, she told me to go ahead and do them. She told me she would see I was paid when the hotel was sold. She told me several times. . . I have repaired the hotel to the extent of $2382.66. Some of this was done since she died."
As to the claim for furniture, the defendant testified: "I sold them [Green and Sosebee] the hotel and my furniture. Some of the equipment in the hotel at the time was mine. . . As property included in the sale that I claim as mine, lobby furniture, leather furniture, venetian blinds, carpets, rugs, replacements of broken furniture and old furniture wearing out, carpets, draperies, shades, kitchen equipment, and dining-room furniture. . . I now testify that at least $6400 worth of furniture in the hotel that was included in the sale that did not belong to my mother's estate. . . I claim that I am entitled to that money from the estate."
A. B. Collier, husband of Mrs. Lou Mae Collier, testified: "Beginning in January, 1943, me and Mrs. Collier leased the Albermarle Hotel from Mrs. Freeman and operated the Hotel from that day until her death. We made repairs to the hotel and Mrs. Freeman knew they were being made. As to what she said about paying for the repairs, Mrs. Freeman was going to sell the hotel at that time; Theo was advising it. At several times she said she would repay us when we sold it. . . Mrs. Freeman had paid out so much on expenses before that, and she had to pay some bonds and she didn't have the money to make the repairs. She said, go ahead and spend the money, and she would pay it when we sold the hotel. From the time we took over the hotel in January, 1943, until we sold the hotel, the only repairs we kept a record of was about $2600. I have a paper showing the record of money spent for supplies and labor that went into the hotel for repairs. I have the name of who I paid. This totals $2016.59. That is the amount of money paid out by myself and Mrs. Collier. We have not been reimbursed for that money, and that is a claim against the estate."
Q. "In the conveyance to Messrs. Sosebee and Green of the hotel and equipment, was any portion of that property that belonged to you and Mrs. Collier?" A. "Supposed to all belong to Mrs. Collier, she bought it." Q. "Did you have any personal furniture in the hotel?" A. "Oh yes. . . I have a list of equipment that was sold and delivered to Messrs. Sosebee Green, belonging to me and Mrs. Collier. The list I have here is all that I can remember. It represents the people we bought the furniture from, the date and amount paid, and totals $7000 or $7100. Mrs. Collier and I paid for it. In the inventory given to Green Sosebee there is about $5400 that belongs to us included in the inventory. These items were actually delivered to Sosebee Green and was Mrs. Collier's property. The total that I can identify is $5441.90, which appears as defendant's exhibit D-11."
The exhibit D-11 referred to by this witness showed two series of items, with prices of each, one headed, "Furniture purchased by Mrs. A. B. C. 1943 to 1945," totalling $5441.86, the other headed, "Repairs and new equipment," and totalling $2607.50.
The plaintiff, Theo D. Freeman, testified: "I came to my mother's funeral, and the only conversation we had was that she [Mrs. Collier] wanted to buy our part and operate the hotel and carry out the will. At that time she did not present us with any inventory of the property mother possessed. . . She did not in any of these conversations make any statement that mother was indebted to her for repairs on the building or any such items as that. I have never heard of any claim that mother owed her any money for any purpose whatever. . . I went through the hotel pretty thoroughly and I couldn't say I saw anything that I understood belonged to her. The things I saw were never known to be her property. . . I was here quite frequently after my mother's illness. While she was fully conscious there was some discussion at different times about what she owed — that she was out of debt and didn't owe anybody. Mrs. Collier was present. That was around Christmas of 1944, and January 1945. . . My mother made the statement in Mrs. Collier's presence that she had no obligation except the bonds and she was hoping to live long enough to pay those off. . . These statements were made in Mrs. Collier's presence, and she didn't make any statement contradictory, or make any statement as to repairs. Mrs. Collier testified that we knew that the property was included in this deed. I did not know anything about that and never heard of it in my life. When we had the discussion in Greensboro, I never heard of her claiming anything except the electric range, the sewing machine, and the piano. . . I never heard of any other such claim until after this suit was filed. . . In the conversation at Greensboro she said she had saved lots of attorneys' fees; that she had the will probated for under $100."
B. D. Freeman testified: "I suppose I visited my mother a half dozen times a year during her illness. . . During the time I was here, my mother, Mrs. Collier, myself, and other members of the family had conversations in which she discussed her business affairs. I recall at one time when Mrs. Collier was present statements by my mother in which she said she didn't think she would live long, but was thankful for one thing — that she didn't owe any money except for one or two bonds . . but she said that was all the indebtedness she had. That statement was made in Mrs. Collier's presence. I never heard of Mrs. Collier making any objection to these statements, or that my mother owed her for furniture. If there had been a $1000 worth of property belonging to Mr. and Mrs. Collier in the hotel, I am pretty sure I would have known it. Neither Mr. or Mrs. Collier prior to the filing of the lawsuit, made any claim to me or in my presence, that they had expended any money of their own for making repairs or for any other purpose of the hotel. Neither of them made any claim to any property as Mr. Collier testified today in the list he had presented, except he did show me a repair in the kitchen which cost about fifty dollars. . . Mrs. Collier made the statement at Greensboro that she had saved the estate some money by having the papers drawn for about $100. She made no statement that she had contracted or expected to pay $2000 attorneys' fees in connection with handling the estate. I never heard of her making any claim of that kind until after this suit was filed."
The evidence in behalf of the defendant as to the three claims, for furniture, repairs, and services, was not disputed directly by any of the plaintiffs' evidence. Such evidence of the defendant was attacked only by testimony of the plaintiffs that on several occasions when the affairs of the testatrix were being discussed the defendant made no statement as to the existence of any such claims, and that she wrote several letters to the plaintiffs regarding purchase of their interest in the estate, and in none of them was any mention made of the claims. This evidence only tended to impeach the defendant's testimony. See Giles v. Vandiver, 91 Ga. 192 (2) ( 17 S.E. 115); Holston v. Southern Ry. Co., 116 Ga. 656 (2) ( 43 S.E. 29); Louisville Nashville R. Co. v. Bradford, 135 Ga. 522 (5) ( 69 S.E. 870). It was not conclusive, but with other evidence introduced presented issues for determination by the jury. Bailey v. Warlick, 196 Ga. 642 (3), 647 ( 27 S.E.2d 322), and citations.
As to the $1000 allowed as fee for attorneys representing the defendant executrix, it can not be said that the judge abused his discretion in overruling the motion for new trial. The value of the estate was in excess of $65,000, and the only real contention of the plaintiffs seems to be that, because the executrix stated to them that she had saved the estate money by having the will probated for a fee of only $100, the attorneys were entitled to no more. It appeared that the will was probated in solemn form, and that the necessary papers were prepared in connection with the sale of the hotel by the executrix, which she was authorized under the will to do. As executrix she was party defendant to this suit, the attorneys represented her, and the decree rendered therein adjudged that she had properly administered the estate and that the complainants had no further interest in the assets thereof. See generally, in this connection, Clements v. Fletcher, 161 Ga. 21 3d ( 129 S.E. 846); Reynolds v. Dorsey, 192 Ga. 538 (1) ( 15 S.E.2d 779).
The court did not err in overruling the motion for a new trial.
Judgment affirmed. All the Justices concur, except Duckworth, C. J., who dissents from headnote 2 and the corresponding division of the opinion and from the judgment of affirmance, and Bell, J., absent on account of illness.