McFadden v. Dale , 1923 Ga. LEXIS 47 ( 1923 )

Atkinson, J.

1.' Where there aré three executors qualified under a will, one of them in his individual capacity may, without resigning as executor, sue the other two in equity, as representatives of the estate, to establish an implied trust in his behalf as to an undivided interest in property purchased during the life of the testator with joint funds, title to which was taken in the name of the testator. MacDougall v. National Bank of Columbus, 150 Ga. 579 (104 S. E. 630).

(a) The ease does not fall within the principle of section 3910 of the Civil Code, which declares: “A legatee taking under a will must allow, as far as he can, all the provisions of the will to be executed. Hence, if he has an adverse claim to the will, he will be required to elect whether he will claim under the will, or against it. The mere fact of being a creditor does not constitute a case of election.” Nor does it fall within the following principles stated in Miller v. Cotten, 5 Ga. 341: “ If a testator has affected to dispose of property, which is not his own, and has given a. benefit to the person to whom that property belongs, the devisee or legatee accepting the benefit so given to him must make good the testator’s attempted disposition. Por the doctrine of election is, that he who accepts a benefit under a deed or will must adopt the whole contents of the instrument, conforming to all its provisions, and renouncing every right inconsistent with it.” In the case stating the principle which is quoted, the will “ affected to dispose of ” the property which the executor in his individual capacity was seeking to recover, whereas in the- ease under consideration the will does not designate any particular, property, but only purports to devise and bequeath such property as might belong to the testator in his own right.

2. Paragraph 16 of the petition was: “Petitioner alleges that all transactions where the joint property of petitioner and her father, Roy T. McPadden, was sold or incumbered, and the money received from such sales or incumbrances reinvested in the 'present property, were by your petitioner entrusted entirely to her father. Petitioner’s father acted for her as agent, and for her -and himself jointly in all such transactions. She never questioned anything that her father did, knowing that her father was working in the interest of their joint business; and never for a moment thinking that her interest in the business and property would he questioned, she signed all papers her father told her to sign,, and agreed to any disposition of their property that her father advised would be for the best interest of their business and property.” Held, considering the above allegations in connection with other allegations to the effect that plaintiff was a minor at the time “ the papers ” were executed under which lots numbers 94, 95, 96, and 97 were purchased, and allegations that the plaintiff did not “ inquire ” as to the character of the papers, but trusted all to her father in whom she confided as her agent, that the petition was sufficient to allege the creation of an implied trust. The case on its facts differs from Wilder v. Wilder, 138 Ga. 573 (75 S. E. 654); Brown v. Carmichael, 152 Ga. 353 (110 S. E. 3).

No. 3031. March 3, 1923.

3. Whether or not a trust would be implied in the circumstances would affect only the immediate parties to the suit, and consequently reformation of the deed would be unnecessary; and the petition was not demurrable on the ground that the grantors in the deeds conveying the property to the testator were not made parties to the action.

4. In the circumstances alleged as to the manner in which the lots in controversy were obtained, and as to the possession of the property, and recognition by the testator, as long as he lived, of the plaintiff’s right to an undivided interest in the property, the action was not barred by the statute of limitations. Roach v. Roach, 143 Ga. 486 (85 S. E. 703).

5. The judge did not err in overruling the demurrer to the petition.

■Judgment affirmed.

All the Justices concur, except Russell, C. J„ dissenting. Hill amd Gilbert, JJ., concur specially as to the ruling in the first headnote. David 8. Atlcinson and Lawrence & Abrahams, for plaintiffs in error. Oliver & Oliver and Columbus E. Alexander, contra.