Opinion
29736.
DECIDED NOVEMBER 21, 1942. REHEARING DENIED DECEMBER 16, 1942.
Appeal from Cobb superior court — Judge Hawkins. May 7, 1942.
Luther Roberts, for plaintiff.
Blair Carmichael, George D. Anderson, H. C. Schroeder, for defendant.
1. The request by the plaintiff in error to amend her bill of exceptions to more clearly designate parties is granted.
2. The pauper affidavit, executed by the plaintiff in error, in which she alleges that she is unable to pay the costs in this court, is insufficient to relieve her and her attorney of the payment of the costs. Griffin v. Griffin, 153 Ga. 547 ( 113 S.E. 161); Scott v. Turpin, 30 Ga. 964.
3. The judge of the superior court, trying the case on appeal without a jury, did not err in rendering judgment against the caveat by the plaintiff in error to the application of the administrator for approval of final return and discharge.
DECIDED NOVEMBER 21, 1942. REHEARING DENIED DECEMBER 16, 1942.
Mrs. Minnie Gann Roberts, "on behalf of the minor children of herself" and her deceased husband, filed a caveat to the final return and application for discharge of James V. Carmichael as administrator of the estate of Frank Gann. The ordinary found against all the claims and contentions of the caveatrix except as to the question of the prospect of other assets, and the discharge was denied on that ground alone. On appeal to the superior court the following facts and contentions were agreed to by the parties:
"Frank Gann, Cobb County, Georgia, died intestate. James V. Carmichael, county administrator, qualified as administrator of the estate of the deceased. On June 7, 1940, Mrs. Minnie Gann Roberts filed in the ordinary's court of Cobb County, her application for twelve months' support for the minor children of herself and the deceased. James V. Carmichael, as administrator, acknowledged service on said application on said date. The appraisers, who were appointed to set aside said twelve months' support, filed their report in the ordinary's court of Cobb County on July 1, 1940, and besides household and kitchen furniture `set apart all money now remaining in the hands of the administrator.' This award was made the judgment of the court of ordinary of Cobb County, Georgia, and no appeal was taken therefrom.
"Prior to June 7, 1940, said administrator had received as such administrator the following sums: [here follows an itemized statement of the sums received.] Prior to June 7, 1940, said administrator had made the following disbursements: [here follows an itemized statement of the disbursements.] Thus, prior to June 7, 1940, said administrator had collected for and in behalf of said estate the sum of $1906.34, and had expended the sum of $1907.11. No further collections or disbursements were made between June 7, 1940, and July 1, 1940, at which time the said twelve months' support was set aside. Therefore, there was no actual cash or money in the hands of said administrator as of July 1, 1940.
"With the exception of $28.09 collected August 2, 1939, above set out, all of the funds coming into the hands of said administrator prior to July 1, 1940, were derived from the sale of properties belonging to the said estate against which properties there were security deeds in amounts greater than said property sold for. All payments made from the funds of said estate by said administrator prior to July 1, 1940, except payments made to the holders of the said security deeds, were made by and with the consent and approval of the holders of said security deeds, and were made possible by the holders of said security deeds reducing the amount of their liens so as to permit the payment of such sums, to wit: $28 advertising; $128.25 commission to Johnson Land Company for sale of land; $41.05 to James J. Daniell, ordinary, court costs; $57 to James V. Carmichael, part payment of commission on funds received and disbursed. Had not the holders of said security deeds reduced their liens in amounts sufficient to permit payment of the amounts just set out, it would have required all the proceeds in the hands of the administrator to apply on said security deeds, and even then there would have been insufficient money to fully satisfy said liens.
"Subsequent to July 1, 1940, to wit: on the 29th day of January, 1941, after said twelve months' support had been set aside, had been made the judgment of the court, and the time allowed by law for appealing therefrom had expired, said administrator received from the Junior Order, Mableton Lodge, the sum of $232.67 on the death benefit which the deceased carried with said order. Prior to the making of said payment to said administrator, said Junior Order had paid to Mayes Ward Company, of Marietta, Georgia, the sum of $267.33 for the expense of the burial of said deceased Frank Gann. Said sum of $232.67 was paid to the administrator as money belonging to the estate of said deceased, and said administrator accepted same in good faith, thinking that the said money was in fact money belonging to the estate of the said deceased, and that he was entitled to same, and said administrator disbursed said sum of money in good faith, thinking it to be money belonging to the estate of said deceased, as follows: [here follows statement showing disbursement of the $232.67.]
"Division 3 of the constitution and national laws for the government of the Junior Order, United American Mechanics, as amended at Washington, D.C., 1937, which was in full force and effect at the time of the death of Frank Gann, deceased, general section 525, at page 155, provides as follows: `Gen. sec. 525, sec. 31. Upon notice of death of an enrolled member from a council having a valid claim for reimbursement as provided by these laws, stating the name, age and roll number of the deceased member if the name of such member is enrolled in the department, the general manager shall forward to such council a "blank proof of death." In each case the proof of death shall be executed in accordance with its form by the signature and affidavits of the councilor, recording secretary, and financial secretary of the council and of the attending physician. In case there was no attending physician the death of the member shall be proven by the statement under oath of the coroner or undertaker. Upon receipt of the general manager of such proof of death, duly executed, as provided by these laws, showing the claim to be valid, the said claim shall be certified to the comptroller, who shall draw proper warrant on the national treasurer, which warrant shall be honored only upon proper endorsement of the treasurer of the council of the genuineness of whose signature shall be authenticated by the endorsed signature of the councilor and recording secretary of said council. The acceptance of said council officers of said warrant shall be held to be in full settlement of such claim and shall discharge this department and the national council from any and all claim and demands of said council and of all legal beneficiaries for said member by reason of his death. The fund so received shall be applied by the council as provided by the law thereof and the laws of the State of its domicile. In default of there being any legal beneficiary or beneficiaries of such deceased member, the council may appropriate toward the payment of the expense of the last sickness and of the funeral expense of the deceased, so much as may be necessary for that purpose, not exceeding the amount to which the member would be entitled, and if after said payment, there shall be any amount remaining, then such excess shall revert to the national council, and be placed to the credit of the same fund from which it was drawn, with a statement and receipt of such sums expended; provided, however, that if it becomes necessary for the council to take charge of the funeral of the deceased brother, or to bind itself for his funeral expenses in order to give him proper burial, then such council may retain out of such death claim, such necessary expenses, and the balance, if any, shall be paid as hereinbefore directed. This statute to take effect immediately upon passage.'
"After the death of said deceased, Mayes Ward Company required the officials of said Junior Order, Mableton Lodge, to stand for the amount of the funeral expenses of said deceased. The officials of said lodge agreed to see that the funeral expenses were paid, and did, in fact, pay said funeral expenses in the sum of $267.33 to Mayes Ward Company. This sum of money never went into the hands of said administrator, but was paid direct by the officials of said Junior Order to said Mayes Ward Company.
"General section 526 of the constitution and national laws of said Junior Order, at page 156, which were in full effect at the time of the death of the deceased, and under which said Junior Order was operating at said time, provided: `No creditor can be a beneficiary, nor can a will be permitted to control the payment of funeral benefits by the council, nor shall such benefits be paid to the administrator, or executor, nor be subject to attachment or other legal process, nor be assigned to pay the debts of the deceased member.'
"Said administrator was not familiar with the above-quoted laws and regulations of the Junior Order, nor did he have any knowledge of their existence at the time of accepting said sum of $232.67 from the Mableton Lodge of said Junior Order, nor at the time of disbursing said sum. Said administrator did not know of the existence of said laws and regulations until after the sum above referred to had been expended by him and he paid out said sum without knowledge of said laws and regulations, but believing that the money was received and expended by him was money belonging to the estate of said deceased. Subsequent to receiving and disbursing said sums set out said administrator made a final return and filed his application for dismission. Mrs. Minnie Gann Roberts filed objections asking that said return be not approved and that said administrator's prayer for dismission be denied. After hearing duly had, the ordinary of Cobb County, issued the following order, to wit: `This case having been continued and a hearing had on September 24th, and continued again to this date, and hearing concluded, it is now adjudged that James V. Carmichael as permanent administrator of this estate has discharged his duty faithfully and in accordance with law, and his final return filed, and his expenditures as shown thereby, are hereby approved and ordered to record. The objections to his dismission are hereby overruled. In view, however, of information given in open court today that there were assets of the estate which were not turned over to James V. Carmichael and of Mr. Carmichael's expressed willingness to hold off his request for dismission until this matter can be investigated further, it is ordered that the matter of dismission be continued for the term. Jas. J. Daniell, ordinary.' From this order Mrs. Minnie Gann Roberts appealed and the case is now before the superior court of Cobb County for determination.
"It is further stipulated that James V. Carmichael qualified as administrator of Frank Gann, deceased, on the day of ____ 1939, and that at that time and all times thereafter he had knowledge that said Frank Gann died leaving minor children who were entitled to a year's support from decedent's estate.
"It is contended by said administrator that he has fully administered said estate, that he is entitled to have each and all of his disbursements approved, and that he should be dismissed unless there are other assets of the estate which have not yet come into his hands which ought to be administered. Said administrator contends, however, that in so far as all receipts and disbursements had and made in said estate to this date should be approved and that he should be discharged from any further liability in so far as said receipts and disbursements are concerned.
"It is contended by Mrs. Minnie Gann Roberts, on behalf of the three minor children of herself and the decedent, Frank Gann, that the administrator herein is liable to account to said minor children for the following items which she avers were illegally disbursed, to wit: $128.25 paid to Johnson Land Company as commissions for the sale of land on Dec. 12, 1939; $120.25 paid on Dec. 12, 1939, to G. H. McMillan, sheriff, for State and county taxes, said items having been paid by him out of the order of their priority and each of them being inferior in rank to the claim of year's support for said minor children, and by virtue thereof being considered in law as money of the estate remaining in the hands of the administrator at the time said year's support was set aside. And that, therefore, the order of the ordinary, approving said payments and overruling appellant's objections to discharge was error. She further contends in this behalf that if the $232.67 paid into the hands of the administrator by the Junior Order as aforesaid was a part of the estate of Frank Gann, deceased, dedicated to a particular purpose and exempted from assignment, attachment or other legal process, and from the claims of creditors, that the payment and disbursement thereof to claimants and creditors of various inferior ranks was a devastavit, and that the administrator is liable to said minor children therefor, and that the letters of dismission should not be granted until an accounting is had. If the said $232.67, so received, was no part of the estate of the said Frank Gann, but was a fund created, held and paid by the insurer for the sole benefit of the minor children of the deceased as beneficiaries under the constitution and by-laws of the Junior Order, then the receipt thereof and its disbursement by the administrator to the general creditors of the estate was an actionable trespass and mispayment of the funds belonging solely and exclusively to the minor children of the said Frank Gann, for which the administrator is liable to account. The fact that the administrator acted in good faith does not relieve him from liability. Between two innocent parties, the minor children on one hand, and the administrator on the other, the loss should fall upon the administrator as the party by the act of whom the loss was sustained. She further contends in said behalf that a large amount of household and personal property, and $100 in cash, was received, as she is advised and believes, by W. E. Gann, a son of the deceased by a former marriage, and that the same has not been administered or accounted for to the estate, and that the administrator herein should not be discharged and relieved of his trust until he has made diligent effort to recover same for the estate."
The judge trying the case without a jury rendered the following judgment, to which Mrs. Roberts excepted: "Objections to the payments made by the administrator to himself on commissions, and to the ordinary for his costs, having been waived in the brief of counsel for the appellant, and it appearing from the undisputed facts that the funds from which the payment of $128.25 to the Johnson Land Company as commissions for the sale of property, and $120.25 to G. H. McMillan, sheriff, for State and county taxes, were derived from the sale of real estate conveyed by the deceased, Frank Gann, during his lifetime as security for debts which exceeded in amount the total sum received from the sale of these properties, and that these payments were made by the administrator with the consent of the holders of the security deeds, who reduced their claims a sufficient amount in order to permit the payments of these two items, such payments furnish no ground for attack by appellant, and she is not entitled to judgment against the administrator in the amount of the payments thus made, to be applied on the year's support. [Citing.]
"Nor is the appellant entitled to judgment against the administrator in this proceeding for the amount of $232.67 received by him from the Junior Order of Mableton, and disbursed by him as alleged in paragraph 6 of the caveat and objections. While these disbursements were to creditors holding claims of inferior rank to that of a year's support, and while the appellant would have been entitled to have these funds applied to the year's support in preference to the creditors thus paid, had the funds belonged to the estate of the deceased, under the constitution and national laws of the government of the Junior Order, United American Mechanics, general section 526, page 156, it will be seen that this fund did not belong to and formed no part of the estate of the deceased, and this being so, it could not be subjected to the year's support. [Citing.] In so far as the appellant claims this fund as the guardian of the minor children of the deceased, and therefore beneficiaries under the death certificate carried by the deceased with the Junior Order, she is an adverse claimant to the estate, and has no standing in this proceeding to have this claim adjudicated. [Citing.] The prayers of the appellant for the judgment against the administrator are denied, and judgment is rendered against the appellant for the costs of this proceeding."
1, 2. The first and second headnotes require no elaboration.
3 ( a). The judgment of the court with respect to the funds coming into the hands of the administrator from his predecessor and from the sale of the real estate of the estate of the deceased was correct. The caveator had no standing in court unless title to the above property passed to her children under the judgment for a year's support. This judgment clearly shows that only money in the hands of the administrator at the time of the setting apart of the year's support was contemplated from the plain and unambiguous terms of the return, which was not appealed. Whether the return as to the money is reasonable is beyond the question. It is a reasonable deduction to say that the appraisers did not know whether there was any money remaining at the time of their return or not. If they had known that there was none it does not seem that they would have set any apart. Nor do we think it was incumbent on the appraisers to determine whether the payments which had been made by the administrator were legal payments, nor to attribute to them as laymen the wisdom of intending to set aside money illegally paid out by the administrator. If they had so intended it would have been so easy to make it clearly known. Likewise, if it had been intended that any other money coming in later should be set apart, such intention could easily have been stated. No appeal was taken from the judgment approving the return of the appraisers, and it must be enforced as written. All of the money above mentioned had been paid out before the judgment setting apart the year's support, and consequently the title did not pass under the judgment setting it apart.
( b) The judgment was correct as respects the proceeds of the sale of the real estate, because if the administrator had not made the agreement he did with the holders of the security deeds there would have been no proceeds from the real estate. In the circumstances the holders of the security deeds had the right to have the agreement enforced as made or they would not have been bound to carry out their part of the agreement. The arrangement amounted to their accepting the money from the sales in full settlement and their paying the bills complained of themselves. Neither the estate of the deceased, nor one claiming under it, could object to the manner in which this matter was handled, because it resulted favorably to the estate in the discharge of more of its obligations than would have resulted without it, and because if the agreement had not been made and carried out the estate would have been in a worse financial condition.
( c) The judgment with reference to the proceeds of the money from the Junior Order of United American Mechanics was correct. It was contended that it belonged to the children and not to the estate. One claiming adversely to the estate must file his claim in a court other than the court of ordinary. Fulford v. Sweat, 65 Ga. App. 521 ( 16 S.E.2d 102); Lyons v. Armstrong, 142 Ga. 257 ( 82 S.E. 651). The question of the liability of the administrator has not been adjudicated in the judgment under review here.
The court did not err in rendering the judgment complained of.
Judgment affirmed. Sutton, J., concurs.
The administrator in his return admitted that, before the taking out of the year's support, he had collected and had in his hands as administrator money belonging to the estate in the amount of $1906.34. According to this return $28.09 was received from the temporary administrator who had been dismissed, and the balance, consisting of four items, represented the purchase-price of various lots of the deceased which had been received from four named individuals. It was admitted in the agreed statement of facts that, with the exception of the $28.09, all of these funds were derived "from the sale of property belonging to said estate against which properties there were security deeds in amounts greater than said properties sold for;" that various disbursements appearing in the return as having been made before June 7, 1940 (the date upon which the year's support was set aside), "were made by and with the consent and approval of the holders of said security deeds, and were made possible by the holders of said security deeds reducing the amount of their liens so as to permit the payment of" certain designated sums, $28 advertising fee, $128.25 as a commission to Johnson Land Company for sale of land, $41.05 as court costs to the ordinary, and $57 as part payment on commission to the administrator; that "had not the holders of said security deeds reduced their liens in amounts sufficient to permit payment of the amounts just set out, it would have required all the proceeds in the hands of the administrator to apply on said security deeds, and even then there would have been insufficient money to fully satisfy said liens."
The year's support which was set apart on June 7, 1940, and approved by the ordinary on July 1, 1940, consisted of "all money now remaining in hands of the administrator for the said minor children's support and maintenance," and "all the household furniture of" the deceased. It appears that on June 7, 1940, when the year's support was set apart, which consisted of "all money now remaining in the hands of the administrator," there was no money actually in the hands of the administrator, but that all of the funds which the administrator had collected and that had come into his hands as administrator before June 7, 1940, had been paid out by him. All of such sums which had been paid out by him, with the exception of the amounts indicated above, consisting of advertising fee, commission for sale of land, court costs of ordinary, and part payment of the administrator's commission, and possibly a small fee of $1.50 for a "revenue certificate on deed," and $120.25 to the sheriff for State and county taxes on property of the estate of the deceased for the years 1937, 1938, and 1939 (the deceased having died in March 1939), were paid to various individuals in satisfaction of loan deeds against property of the deceased.
It was contended by the administrator and was so held by the judge in passing on the law and the facts under an agreed statement of facts, that the year's support could not attach to the funds which had come into the hands of the administrator from the sale of the real estate upon which certain individuals held security deeds, which funds had come into the administrator's hands by consent of the holders of such deeds. The idea seems to be that title to the property having passed into the holders of such deeds the year's support could not attach to any money derived from the sale of the property.
It is stated, however, that the holders of the security deeds "reduced" the amount of their "liens" and consented for the administrator to use a portion of the funds derived from the sale of the real estate in the payment of certain debts as narrated above which were not secured by real estate.
The year's support would rank ahead of all the claims against the decedent or the estate which were paid out by the administrator, with the possible exception of the money derived from the sale of real estate upon which the decedent had placed security deeds. It is insisted that since all of the funds which had come into the hands of the administrator before the setting aside of the year's support had been expended, the year's support, which consisted of all money at the time in the hands of the administrator, had nothing to which it could attach. An administrator is presumed to have knowledge of the condition of the estate, and of the fact that the wife or minor children may, for a stipulated period, obtain a year's support which will supersede a great many of the debts of the decedent. In McLean v. McLean, 51 Ga. App. 751, 753 ( 181 S.E. 707), it was stated as follows: "It was no defense to the year's support proceeding that claims against the estate inferior in rank to a year's support had been paid. The evidence shows that these claims were paid within two or three months after decedent's death. There was no obligation on the executors to pay them until the close of the administration year. Code of 1933, § 113-1507 (Code of 1910, § 3999). If they were paid earlier, it was at the risk of the executors in so far as any other claims of superior rank which might be later presented were concerned." Anders v. First National Bank, 165 Ga. 682 ( 142 S.E. 98); Swain v. Stewart, 98 Ga. 366 ( 25 S.E. 831); Miller v. Miller, 105 Ga. 305 ( 31 S.E. 186); Brown v. Joiner, 77 Ga. 232 ( 3 S.E. 157). The application for year's support was filed within twelve months of the appointment of the administrator, the application and the setting aside of the year's support being on June 17, 1940, and the appointment of the administrator being on June 29, 1939. The administrator was not called on to pay out any money of the estate before the expiration of twelve months after his appointment and qualification, and if he paid out such he did so at his own risk and subject to the filing of a year's support within a period of twelve months against all funds within his hands that would be subject to a year's support. The appraisers, in setting aside as a year's support "all money now remaining in the hands of the administrator," necessarily intended to set aside something of substantial value. Therefore the return of the appraisers setting aside such money as a year's support should be construed as setting aside all the money which the administrator had collected, which, according to the return of the administrator, amounted to over $1900. Of course, if any portion of this money was not subject to a year's support, as being money derived from the sale of real estate to which creditors of the decedent held title, the return of the appraisers as respects such money would be abortive and noneffective.
It does not appear that the money which the administrator accounted for as administrator and which was derived from the sale of the real estate was money belonging to the creditors of the decedent who held deeds to the real estate to secure debt. It appears that these secured creditors "reduced their liens" by the amount of the money from the sale of the real estate which had come into the hands of the administrator. This must necessarily mean that these creditors, either donated these funds to the estate, or possibly loaned them to the administrator personally. In any event the administrator treated these funds as funds of the estate, and he accounts therefor to the ordinary in his final return which is the subject-matter of this litigation. The administrator having accounted for these funds as the property of the estate is estopped from asserting that they are not funds of the estate. Therefore the lien of the year's support attaches to the funds, received by the administrator before the setting apart of the year's support, which belonged to the estate and which were not derived from the sale of any real estate the title to which may have been conveyed to any one else as security for debt. The lien of the year's support also attaches to the other funds which were derived from the sale of the real estate which may have been deeded to secure debt, and which these creditors had, by "reducing" their "liens," allowed the administrator to take charge of and turn them into the estate as assets of the estate, and on which the administrator administered as part of the estate and paid out to other creditors. The court therefore erred in not allowing a year's support out of the money collected by the administrator before the setting aside of the year's support.
As respects the sum which the administrator received from the Junior Order, after the year's support had been set apart, and which he accepted as part of the estate and on which he administered as part of the estate and paid out on debts of the estate, it was not subject to the year's support. After applying to the year's support the money subject thereto, this fund derived from the Junior Order is insufficient to pay all the debts of the estate. This fund, if it were a part of the estate and was delivered to the administrator as such, was properly treated, and administered by him, as part of the estate. If it belonged to the minor children in their own right as coming from the Junior Order, they can not claim it as against the administrator in their caveat to his final returns.
The judgment sustaining the return of the appraisers and finding against the caveat was error, and should be reversed.