Adlerv.Adler

Court of Appeals of GeorgiaMar 14, 1953
87 Ga. App. 842 (Ga. Ct. App. 1953)
87 Ga. App. 84275 S.E.2d 578

34382.

DECIDED MARCH 14, 1953. REHEARING DENIED MARCH 28, 1953.

Declaratory judgment; from Chatham Superior Court — Judge Atkinson. July 9, 1952.

Robert M. Hitch, Hitch Harrison, Connerat, Dunn, Hunter, Cubbedge Houlihan, for plaintiff in error.

Jenkins Oliver, Brannen, Clark Hester, contra.


1. The superior courts of this State have power, upon petition or other appropriate pleading, to declare rights and other legal relations of any interested party petitioning for such declaration, where there is an actual controversy between interested parties asserting adverse claims upon an accrued state of facts.

2. Where there are two executors of an estate and they are unable to agree as to what should be done with reference to a proposed sale of certain assets of the estate to a third party, and where one executor claims the right under the facts and circumstances of the case to purchase the assets individually either at private or public sale and is interested in the estate and has offered to pay the highest and best price for the property in question, and where there is a controversy between the petitioning executor and the other executor and the proposed purchaser as to which, if either, of said parties is entitled to a conveyance of the property and for what consideration — a justiciable controversy exists between adverse parties upon an accrued state of facts within the intention and meaning of the Declaratory Judgment Act.

3. The petition set out a cause of action for a declaratory judgment against each of said defendants, and the trial judge did not err in overruling their demurrers thereto.

DECIDED MARCH 14, 1953 — REHEARING DENIED MARCH 28, 1953.


Olga H. Adler sued Sam Adler and Savannah Bank Trust Company of Savannah, as coexecutor of the will of Leopold Adler, seeking a declaratory judgment. The petition alleged in substance: that the plaintiff and Savannah Bank Trust Company of Savannah were coexecutors under the will of Leopold Adler, deceased; that item XI of the will empowered the executors and trustees named in the will "to make sales or transfers of property without the order of any court, at public or private sale, and on such terms as to them may seem best"; that, under and in accordance with the terms of the will, the executors determined that certain property should be sold; that the coexecutor bank suggested a minimum listing of $40,000 for one tract of land designated as 14 East State Street and $15,000 for the other tract known as 16 East State Street, in Savannah, Georgia, to be sold by the executors; that the plaintiff consented to the listing of the property with a named realty company in the belief that every effort would be made to secure a better price; that, on May 5, 1952, the executors entered into an exclusive sales agreement with the realty company giving said realty company the exclusive right and authority to sell the property, which contract was delivered to a named trust officer of the defendant bank; that, within an hour after receiving this contract, the trust officer called the defendant Sam G. Adler and advised him of the details of the listing contract; that the defendant Sam G. Adler on that same day secured the services of another realty company and executed an offer to purchase the property known as 16 East State Street for $15,000; that the facts that the trust officer had disclosed the details of the listing contract to the defendant Sam Adler, and that this defendant had made an offer to purchase the property at the listed price, were not made known to the plaintiff, although she was coexecutrix; that, without knowledge that the offer to purchase had been made by the defendant Adler, the plaintiff as an individual directed an officer of the realty company holding the listing contract to submit an offer on her part to purchase the property known as 16 East State Street for $17,500, and instructed him to undertake to secure offers from the general public on both properties; that the plaintiff was informed by an official of the realty company that the trust officer of the defendant bank had stated that it might be necessary to sell the other tract of land for less than $40,000, and, in order to protect the estate, the plaintiff directed the realty company to submit an offer on her behalf of $40,000 for the property; that the two sales contracts were submitted, whereby the plaintiff offered to purchase the property known as 16 East State Street for $17,500 and the property known as 14 East State Street for $40,000; that these two offers were submitted contemporaneously and were intended to be submitted as one offer; that, at the time the plaintiff authorized the offers to be made, the acceptance date was left blank as it was her intention to give the realty company an opportunity to scour the local market and undertake to obtain the best price possible for the property; that the plaintiff disclosed to the defendant bank that the offers signed by her agent were made in her behalf individually; that the defendant Sam Adler contended that he was entitled to acquire the property known as 16 East State Street under his offer of $15,000, but that this defendant had made an additional offer of $17,500 for this property, and offered to purchase the two properties for $57,500, which was the exact sum the plaintiff had offered to pay individually for the two properties; that the defendant bank did not notify the plaintiff of the two offers; that the plaintiff then directed the realty company to submit an offer in her behalf of $67,500 for the two properties, which was submitted to the bank as coexecutor; that, on May 23, the defendant bank notified the plaintiff's attorney that the defendant Sam Adler had made an offer of $67,750 for the two properties; that, although the offer was signed at 11:45 a. m. and was left open for acceptance until 10 a. m., May 26, the defendant bank purported to accept the offer at 12 noon on the same day the offer was made; that the plaintiff desired to purchase the property individually and is willing to pay an amount in excess of the offer made by Sam G. Adler; that, although the plaintiff's offer of $67,500 had been placed with the defendant bank for a period of over 10 days and had neither been accepted nor rejected, the defendant bank attempted to accept the offer of Sam G. Adler within 15 minutes and immediately upon its receipt; that the plaintiff is ready, able, and willing to pay the amount of $70,000 in cash for the two properties and attaches her offer to purchase the properties at this sum, that, if the court should determine that it is to the best interests of the estate for the property to be sold at public outcry, then the plaintiff now offers $70,000 for the property, if such sale is ordered by the court; that the plaintiff is legally qualified to purchase the property from the estate, as she is a legatee to the extent of a one-fifth interest and has never been in possession of any knowledge or facts by virtue of her position as coexecutrix which were not known to the other legatees; that the plaintiff has made full disclosure of everything she knew about said real estate; that the plaintiff is willing as coexecutor to sign a deed of conveyance to any person, including the defendant Sam Adler, who will pay the highest and best price for which the property to be sold, but that she declines to permit the property to be sold to this defendant for less than that which can be secured from other persons including herself individually; that there is a justiciable controversy existing between the plaintiff and each of the defendants, and the plaintiff is entitled to a declaration by the court of her rights in said controversy; that the justiciable controversy between the plaintiff and the defendant bank is that she contends that the said real estate should not be sold to Sam G. Adler at his offer of $67,750, as desired by the defendant bank which accepted his offer, but should be sold to the person making the highest and best offer as required by the interests of the estate and the legatees, while the defendant bank has shown by its conduct a refusal to consider the plaintiff individually as a purchaser for said property and will not accept an offer from her, even though it is the highest and best offer; and that the justiciable controversy between the plaintiff and the defendant Sam G. Adler is that he has contended that the estate cannot sell the property to the plaintiff, while the plaintiff contends that she is legally qualified to purchase under the circumstances alleged.

The prayers of the petition were: for process, and that the court enter a judgment declaring the plaintiff's rights to be that she is entitled to purchase the property if she makes the highest and best offer therefor, and that the property should be sold to the person whosoever it may be who makes the highest and best offer for the property; that, in the event the court determines that the property should be sold at public outcry, the court provide that the bidding begin with the offer made by the plaintiff to purchase the property for $70,000, and provide that the property be sold to her if she makes the highest offer; and that the plaintiff have such other and further relief as to the court may seem just and proper.

The defendant, Sam Adler, filed a general demurrer to the petition, on the grounds that the allegations were insufficient to set forth a cause of action, and did not constitute a justiciable controversy under the Declaratory Judgment Act; that the allegations reveal the efforts of a cofiduciary to compel her coexecutor to sell properties owned by the estate to the plaintiff, and fail to set out a cause of action; and that the petition shows a bona fide offer on the part of the defendant Sam Adler to purchase the properties for $67,750 and the acceptance thereof by the defendant bank, one of the coexecutors of the will. The defendant bank demurred generally to the petition upon the grounds, that it set out no cause of action; that it shows no proper ground for declaratory judgment, as same would not adjudicate the differences between the plaintiff and the defendant Sam Adler, nor have the final and binding effect and protection to the estate of an interpleader between the parties; and that said petition attempts to have rights determined in a declaratory-judgment action founded upon allegations of matters which had not happened at the time the proceeding was brought.

The trial judge overruled the demurrers filed by the defendants on each ground thereof, and the defendants excepted.


1. "In cases of actual controversy the respective superior courts of the State of Georgia shall have power upon petition, or other appropriate pleading, to declare rights, and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed, and such declaration shall have the force and effect of a final judgment or decree and be reviewable as such." Code (Ann. Supp.), § 110-1101 (a). "Without limiting the generality of any of the foregoing provisions, any person interested as or through an executor, administrator, trustee, guardian, or other fiduciary, creditor, devisee, legatee, heir, ward, next of kin, cestui que trust, in the administration of a trust or of the estate of a decedent, an infant, lunatic, or insolvent, may have a declaration of rights or legal relations in respect thereto and a declaratory judgment: . . (b) to direct the executor, administrator or trustee to do or abstain from doing any particular act in their fiduciary capacity, or (c) to determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings." Code (Ann. Supp.), § 110-1107. The purpose of our declaratory-judgment statute is expressly declared to be "to settle and afford relief from uncertainty and insecurity with the respect to rights, status, and other legal relations, and is to be liberally construed and administered." Code (Ann. Supp.), § 110-1111. The term "actual controversy" as used in the above statute, and the terms "rights, status, and other legal relations," all relate to a justiciable controversy, and a controversy is justiciable when there are interested parties asserting adverse claims upon an accrued state of facts. Brown v. Lawrence, 204 Ga. 788 ( 51 S.E.2d 651).

Under the allegations of the petition, there exists a controversy between the plaintiff and the defendants as to the plaintiff's right to purchase the property individually from an estate of which she was one of the coexecutors. There is also a controversy between the plaintiff and the defendants as to the necessity of the plaintiff's joining with the other coexecutor in the acceptance of the offer of the defendant, Sam G. Adler, to purchase the properties for a price less than the estate is able to obtain from the plaintiff individually. The petition seeks a declaratory judgment directing the executors with reference to the sale of the property in question, where the two executors fail to agree upon what action should be taken by them in the administration of the estate. It cannot be questioned but that the interests of the plaintiff and those of the defendant, Sam G. Adler, are adverse with reference to which of these parties, if either, is entitled to purchase the property from the estate under the facts alleged in the petition. We think that the allegations of the petition are sufficient to show a justiciable controversy between adverse parties in connection with the administration of the estate of Leopold Adler, deceased, and that the trial judge did not err in so holding.

2. Does the petition set out a cause of action with reference to the right of the plaintiff to enter a bid and to purchase the property from the estate of which she is one of the coexecutors? In the absence of any provision of the will restricting or enlarging the right of an executor or coexecutor, to purchase property of the estate of which he is an executor, the rights of an executor under the laws of this State are very similar to those of an administrator, and it is well-settled law that an administrator who is an heir at law of his intestate, and as such has an interest in the property sold, may purchase at the sale of the property of the estate: provided he is guilty, of no fraud and the property is exposed for sale in the ordinary mode and under circumstances to command the best price. Goldin v. Smith, 207 Ga. 734 ( 64 S.E.2d 57); Arnold v. Arnold, 154 Ga. 195 ( 113 S.E. 798); Gormley v. Askew, 177 Ga. 554 ( 170 S.E. 674); Melton v. Phoenix Mutual Life Ins. Co., 160 Ga. 694 ( 128 S.E. 900).

It is alleged in the petition in the present case that the plaintiff is a legatee of the estate and interested to the extent of a one-fifth interest in the estate. The petition further alleges that the plaintiff made a full disclosure to all of the other legatees of all the information she had with reference to said properties, and that she is offering a greater price for the properties involved than is being offered by the defendant, Sam G. Adler, or by anyone else. The prayers of the petition are for a judgment declaring her right to purchase the property, if she makes the highest and best offer therefor, and that the property be sold to the person making the highest and best offer for it. The petition also asks, if the court determines that the property should be sold at public outcry, that the court provide that it be sold to her if she makes the highest offer for it.

It is the duty of the executors to sell the property of the estate in such manner that it will bring the highest price possible to the estate. Although the will gives the executors power to sell the property of the estate at private sale, if the two executors cannot agree upon a private sale of the property, or if the court should find that it would be to the best interests of the estate that the property be sold at public outcry, then the superior court has the authority to enter a declaratory judgment directing the executors as to the method in which such sale should be conducted. The court likewise has the authority to determine the legal effect and construction to be placed on the various offers, counter offers, letters, and other writings involved in the administration of the estate with reference to the sale of the property in question. As coexecutor of the estate of Leopold Adler, the plaintiff has the right to petition the court for a declaratory judgment directing her as to what she and the other executor are required to do or abstain from doing with reference to the defendant Sam G. Adler's claim that he is entitled to require them to deed the property to him because of his offer to purchase and the acceptance of that offer by the defendant bank as one of the executors of the will. The plaintiff is also entitled to a declaratory judgment with reference to her right to purchase the property at private or public sale under the facts set out in the petition. While, as a general rule, a purchase by an executor or coexecutor at his or her own sale of land of the deceased testator is voidable at the option of the legatees or parties interested in the estate, such sales are not void; and an executor or coexecutor who is a legatee under the will and interested in the property sold may purchase the property: provided such executor or coexecutor is guilty of no fraud and the property is exposed for sale in the ordinary mode and under circumstances to command the best price possible for the property sold.

3. The petition set out a cause of action against each of the defendants for a declaratory judgment, and the trial judge did not err in overruling their grounds of demurrer to the petition.

Judgment affirmed. Felton and Worrill, JJ., concur.