Opinion
33132.
DECIDED NOVEMBER 18, 1950.
Appeal; from Fulton Superior Court — Judge Shaw. April 12, 1950.
Charles W. Bergman, for plaintiff.
Grant, Wiggins, Grizzard Smith, for defendants.
1. The grounds of the special demurrers will not be considered.
2. Fraud in the procurement of the judgment discharging the administrator cum testamento annexo from his trust was sufficiently alleged in the petition of the heirs at law, seeking to set aside the judgment of discharge upon the ground of fraud, and the petition is not subject to general demurrer.
DECIDED NOVEMBER 18, 1950.
Carl S. Harris, as administrator with the will annexed, of Mrs. Dora Weiner, filed his petition on March 5, 1949 in the Court of Ordinary of Fulton County, in which he alleged that he had fully discharged his duties and in which he prayed that citation issue, that he be discharged and receive letters of dismission. On March 10, 1949, citation was ordered issued and published as required by law; and, at the April term, 1949, the ordinary entered the following judgment: "It appearing to the Court, that Carl S. Harris as Admr. CTA of the estate of Mrs. Dora Weiner, deceased, has filed his petition for discharge from said trust; that citation was issued and published as the law requires; and it also appearing from an examination of the condition of the estate of said deceased, and the conduct and accounts of said Carl S. Harris that he has faithfully and honestly discharged the trust and confidence reposed in him and is legally entitled to discharge therefrom, and no objection being offered thereto; it is ordered that he be, and he is hereby discharged from said administration and that, as evidence thereof, letters of Dismission issue to him."
On May 7, 1949, Betty Birnbaum, Celia Lipschitz (Gerald J. Abis, and Eugene Abis, filed the following petition in the Court of Ordinary of Fulton County: "1 . . . Yudel Rubinstein, now deceased, was a brother of Dora Weiner, the testatrix above named. 2 . . . the said Yudel Rubinstein predeceased the said Dora Weiner, and at the time of his death, he left surviving him three children, to wit: your petitioners, Betty Birnbaum and Celia Lipschitz, and one Ida Abis. 3 . . . Thereafter the said Ida Abis died and left her surviving two children, your petitioners, Gerald J. Abis and Eugene Abis. 4 . . . All of your petitioners are over the age of 21 and of sound mind. 5 . . . On the 3rd day of March, 1949, your petitioners for the first time received knowledge that the testatrix herein, Dora Weiner, had died and that she left an estate pending in the Court of Ordinary, Fulton County, Georgia, wherein Carl S. Harris of Atlanta, Georgia, had been duly appointed administrator, C.T.A. 6 . . . Prior to said date your petitioners had received no knowledge of any kind whatsoever as to the death of the said Dora Weiner, that she had left an estate, that your petitioners were heirs-at-law of said Dora Weiner and were entitled, as such, to share in her estate. . . Solomon Rubinstein, a brother of the decedent, Dora Weiner, and a brother of the said Yudel Rubinstein, has been a resident and still is a resident of the City and State of New York, known to your petitioners, and that said Solomon at all times knew of their existence and that they were heirs-at-law of the said Dora Weiner. 8 . . . Although your petitioners had at all times been in touch with the family of the said Solomon Rubinstein, at no time did the said Solomon Rubinstein ever communicate with your petitioners, or any one of them, although he knew where they were located, to inform them of the death of the said Dora Weiner and the fact that she had left an estate in which they were entitled to distribution. 9. Your petitioners are informed and verily believe that the said Solomon Rubinstein purposely, and with the intent of depriving your petitioners of their respective shares in the said estate, and for the purpose of enabling himself and others to receive more than they were entitled to, concealed from the petitioners and from this court the fact of the existence of your petitioners, that they were heirs-at-law of the said Dora Weiner, and were entitled to distribution in her estate. 10 . . . Your petitioners, through their attorney, George J. Cooper . . on the 4th day of March, 1949, notified Carl S. Harris, the administrator, C. T. A., herein, by registered mail, that they were entitled to distributive shares in her estate, and that he would be held accountable for any distribution made which did not take them into consideration. 11 . . . Your petitioners have been informed and verily believe that the said administrator, C. T. A., was dismissed on April 4th, 1949, without receiving any prior notice thereof, and that at the time of said dismission the said Carl S. Harris did not inform this court of their existence, their relationship to the decedent and their claim made against him prior thereto. 12 . . . Your petitioners are informed and verily believe that a fraud has been perpetrated on the court and that they have been deliberately defrauded of their distributive shares herein. Wherefore, your petitioners respectfully pray that the letters of dismission issued be revoked; that they be entitled to prove their relationship to the testatrix herein, and that they have such other and further relief as may be proper in the premises."
The defendant moved to dismiss the petition on the ground that it does not, in whole or in part, constitute sufficient allegations to authorize the court to revoke the letters of dismission; nor is it sufficient to allow the plaintiffs to prove their relationship to the testatrix. The defendant demurred specially to paragraph 7 of the petition on the ground that the defendant was not accountable for the action of Solomon Rubinstein and does not show that the defendant had any knowledge of the existence of the plaintiffs; he demurred specially to paragraph 8 on the ground that he did not have knowledge of the contact between Solomon Rubinstein and the plaintiffs and the failure of Rubinstein to inform the plaintiffs of Mrs. Weiner's death and the fact that she had left an estate in which they should share; he demurred specially to paragraph 9 on the ground that it failed to show that the defendant had any knowledge of the alleged purpose of Rubinstein to conceal the fact of Mrs. Weiner's death from the plaintiffs and thereby obtain a greater portion of the estate, and that the defendant was in no wise responsible for Rubinstein's actions; he demurred specially to paragraph 11 on the ground that "there is no requirement of law for the administrator to notify said heirs and that there is no requirement of law for said respondent [the defendant] to inform the court of their existence as the paragraph fails to show that the notification was received prior to the filing of the application for discharge; he demurred to paragraph 12 on the ground that it does not allege any acts which would show a fraud perpetrated by the defendant either upon the plaintiffs or upon the court. The court of ordinary overruled the defendant's motion to dismiss and the demurrers, and he appealed to the superior court. In the superior court the plaintiffs added by amendment the following paragraph: "That the notification referred to in paragraph 10 above was received by the said administrator prior to March 9, 1949; and, while receipt of the notification was twice acknowledged prior to April 4, 1949, neither petitioners, who are residents of the State of New York, nor their said attorney, were ever advised by said administrator, nor had any knowledge, that an application for letters of dismission had been filed in behalf of administrator and was then pending." The defendant renewed all the grounds of general and special demurrer filed to the original petition. The court overruled the demurrers on each and every ground, and the defendant excepted.
1. The grounds of the special demurrers were not argued and are not generally insisted upon in the brief for the administrator and will not be considered. Code, § 6-1308.
2. The sole question for determination by this court is whether the petition, which seeks to have the judgment of the court of ordinary, granting the administrator cum testamento annexo his letters of dismissal, set aside on the ground of fraud, is subject to general demurrer.
From the allegations of the petition it appears that on March 3, 1949, just two days prior to the defendant's filing of his application for discharge as administrator cum testamento annexo, on March 5, 1949, the plaintiffs, all of whom live in New York, learned of the death of Mrs. Weiner and that she had left an estate pending in the Court of Ordinary of Fulton County wherein the defendant had been duly appointed administrator cum testamento annexo. Through their attorney, the plaintiffs notified the defendant by registered mail that they were heirs at law of Mrs. Weiner, and, as such, were entitled to distribution in her estate. The plaintiffs' notification of the defendant was received some time prior to March 9, 1949, and its receipt was twice acknowledged prior to April 4, 1949. The plaintiffs were informed and believed that the defendant received his discharge as administrator cum testamento annexo on April 4, 1949. It appears from the record that the discharge was granted during the April Term, 1949, the earliest term at which it would have been granted in view of the necessity of publishing the citation "once a week for four weeks." Attached to and filed with the petition, though not referred to therein specifically, is the following letter, which undoubtedly is the notification which was given the administrator by the plaintiffs through their attorney. The letter is addressed to the defendant administrator and dated March 4, 1949: "Dear Sir: You will please be advised that I have been authorized and retained by Betty Birnbaum, Celia Lipschitz, Gerald Abis and Eugene Abis to represent them as interested parties in the estate of Dora Weiner, deceased. I understand that you are the administrator of Dora Weiner's estate, having been appointed by the Fulton County Court of Ordinary in April of 1946. Mrs. Birnbaum and Mrs. Lipschitz are daughters of Yudel Rubinstein, deceased, who was a brother of the decedent. Gerald and Eugene Abis are the surviving children of Ida Abis, deceased, who also was a daughter of Yudel Rubinstein. You will please be advised that on behalf of my clients I make demand for payment of their distributive share in said estate and hereby put you on notice that if any distribution had been made or will be made without taking into consideration their relationship to the decedent, we shall hold you accountable therefor. The fact of death of the decedent was learned by my clients just yesterday and we firmly believe that others interested in this estate, although they knew of the existence of my clients and their relationship to the decedent, deliberately withheld such information from the court. I would thank you to notify me at once as to whether you or the court requires formal affidavits or other proof of the relationship; the size of the estate; the status thereof and the extent of any distribution which might have already been made." It is alleged also that at the time of his discharge, the defendant did not inform the court of the existence of the plaintiffs, their relationship to the decedent and their claim made against him prior to his discharge.
"A discharge obtained by the administrator by means of any fraud practiced on the heirs or the ordinary is void [voidable], and may be set aside on motion and proof of the fraud." Code, § 113-2303.
"An administrator occupies a position of the highest trust and confidence to heirs at law and is required to act in entire good faith in performing the duties of the trust." Morris v. Johnstone, 172 Ga. 598 ( 158 S.E. 308).
"Where persons sustain toward another a relation of trust and confidence, their silence when they ought to speak, or their failure to disclose what they ought to disclose, is as much a fraud in law as an actual affirmative false representation." Morris v. Johnstone, supra.
The defendant's petition as administrator cum testamento annexo alleged that "he had fully discharged all his duties as such . . and is now entitled to his discharge from said trust." As against the demurrer, we must accept as true the allegations of the petition that the defendant as administrator cum testamento annexo knew, prior to the date of his discharge, of the existence of the plaintiffs who claimed a distributive share of the estate of Mrs. Weiner as her heirs at law; and, though the plaintiffs, through their attorney, demanded information as to the status of the estate, the defendant did not apprise them or their attorney, nor did they otherwise know, that the defendant's application for discharge as administrator cum testamento annexo was then pending in the court of ordinary. Nor did the administrator, upon the hearing of his application for discharge, inform the court of the existence of the alleged heirs at law and of their claim to a distributive share in the estate. Assuming that the plaintiffs' claim was a valid one, for the purposes of passing upon the ruling on the demurrer, can it be said that the administrator had "fully discharged all his duties"? Or, could his failure to inform the court of the existence of the plaintiffs and of their claim upon the estate have had any other effect than to deceive and impose upon the court of ordinary, and thus fraudulently and improperly to obtain the judgment of dismissal? We think not. Davis v. Albritton, 127 Ga. 517, 520 ( 56 S.E. 514); Seagraves v. Powell, 143 Ga. 572, 580 ( 85 S.E. 760). We think, therefore, that the allegations were sufficient, as against general demurrer, to show that the defendant had fraudulently procured his discharge by representing to the court of ordinary that he had fully administered the estate and had discharged all of his duties as administrator; and that the plaintiffs had no knowledge of the pendency of the application for, or the judgment of, discharge; and the court did not err in overruling the general demurrer to the petition.
Judgment affirmed. Gardner and Townsend, JJ., concur.