Kytle v. Kytle , 180 Ga. 833 ( 1935 )

Bell, Justice.

This was a suit against an executor for accounting and for other relief. The exeexxtor xvas the son of the testatrix, and he and a minor child of a deceased son xvere the only beneficiaries under the xvill. The will first provided for a special bequest to the minor, and then gave to him one half of the residue. Interest on the legacies of the minor xvas to be paid annually to his mother for his benefit. The suit was brought by the mother in her oxvn behalf and as natural guardian and next friend of the minor. The testatrix xvas at one time guardian of the father of this minor; and by an amendment the plaintiff' sought to recover of the executor an amount alleged to be due b.y the testatrix as such guardian. This and the claims based on the will xvere all referred to an axxditor, to xvhose report exceptions xvere filed by both parties. The court sustained one of the plaintiff’s exceptions to the auditor’s findings of fact, bxxt disapproved all other exceptions to his findings of fact and overruled all exceptions to his conclusions of law. To the final decree, xvhich consistently followed, both parties excepted. Eeld:

1. The insurance policy on the life of the testatrix, payable to her txvo sons in equal shares, but containing a provision that “if any beneficiary shall die before the insured, the interest of such beneficiary shall vest in the insured,” became payable in equal parts to the surviving son and to the estate of the insured on the'death of the other son before the death of his mother, the insured. The sxxrviving son, as executor, was thxxs accountable in his representative capacity for only one half of the proceeds of this policy, and the axxditor and the trial judge properly so held. A different ruling .was not required because of admissions in the executor’s original answer, such admissions having been expressly withdrawn by amendment. Alabama Midland Railway Co. v. Guilford, 114 Ga. 627 (40 S. E. 794); Mims v. Jones, 135 Ga. 541 (69 S. E. 824); McConnell v. Gregory, 146 Ga. 475 (91 S. E. 550). Nor did the stricken admissions, with the other evidence, demand a finding or ruling to the contrary.

2. The testatrix, xvhile acting as guardian for the father of the minor in whose behalf the present suit was instituted, advanced to her ward, out of funds inherited by him, a sum of money xvith which to buy an aeroplane, the ward being at the time about 20' years of age. This advancement was made without any order of court, and no return respecting the same was ever made by the guardian; nor did the ward give any receipt of release therefor either before or after his arrival at majority. The aeroplane was soon wrecked, and the advancement thus lost by the action of the ward. The evidence authorized the inference that the amount thus advanced to the ward was $800, and that during a period of more than four years after his arrival at majority he stated to several persons at different times that he had received and spent his inheritance. During the interim between his arrival at majority and his death at an age of about 25% years, he visited his mother at frequent intervals, and there was no evidence of an inclination on his part to require his mother to account for the sum so advanced to him. The transaction was one which the ward could affirm on becoming of age, and in the circumstances the auditor was authorized to find a ratification on his part, and, to that extent, to deny a recovery against the executor of the testatrix. See, in this connection: Steadham v. Sims, 68 Ga. 741 (2) ; Poullain v. Poullain, 72 Ga. 412 (4) ; Adams v. Reviere, 59 Ga. 796; Bennett v. Bird, 139 Ga. 25 (76 S. E. 568) ; Cook v. McGarrity, 161 Ga. 145 (129 S. E. 644) ; Bell v. Swainsboro Fertilizer Co., 12 Ga. App. 81 (76 S. E. 756) ; Thompson v. Neely, 32 Ga. App. 131 (123 S. E. 171) ; Hood v. Duren, 33 Ga. App. 203 (125 S. E. 787) ; 28 C. J. 1158-9, § 274-5; 31 C. J. 1062, § 154.

(a) The evidence did not demand a finding in favor of the executor as to the remainder of the funds which came into the hands of the testatrix as such guardian. Phœnix Ins. Co. v. Gray, 113 Ga. 424 (2), 430 (38 S. E. 996) ; Hill v. Armour Fertilizer Works, 21 Ga. App. 45 (5) (93 S. E. 511) ; Pitts v. Rape, 25 Ga. App. 722 (104 S. E. 643).

(5) No question has been raised as to whether a recovery on this claim should be had only by a legal representative of the deceased ward.

3. The plaintiff’s claim on account of the former guardianship of the testatrix was made by an amendment, to which the defendant executor filed an answer. The plaintiff filed a demurrer to this answer, and excepted to the report of the auditor overruling such demurrer. The judge did not err in overruling this exception. The answer was not subject to the grounds of general demurrer, and the overruling of the special grounds was harmless, if erroneous. The defendant was not required to answer the plaintiff’s amendment; and even if he had filed no answer thereto, he still could have met the amendment with the evidence which he introduced. See Central of Georgia Ry. Co. v. Brandenburg, 129 Ga. 115, 119 (58 S. E. 658) ; Hoffman v. Franklin Motor Co., 32 Ga. App. 229 (7), 236 (122 S. E. 896), and cit.; Norwood v. Fidelity & Deposit Co., 38 Ga. App. 534 (15) (144 S. E. 387). This ruling is not in conflict with the decision in Briers v. Hackney, 6 Ga. 419. In that case it was decided only that the settlement was not ground for a plea in ban-. The court did not hold that the settlement would not constitute a good defense, if shown to be fair and just, “upon a full and impartial investigation by the proper tribunal.” Nor are any of the present rulings contrary to the decisions in McKee v. McKee, 48 Ga. 332 (2), and Hoyt v. Ware, 156 Ga. 98 (4) (118 S. E. 734).

4. An exception to the report of an auditor must distinctly specify the errors complained of, and be complete within itself. Loyd v. Camp, 172 Ga. 510, 515 (158 S. E. 40). The exception should also contain all facts and rulings necessary to show harmful error. Coosa Land Co. v. Edger-ton Mfg. Co., 165 Co. 808 (142 S. E. 149) ; Baxter v. Camp, 126 Ga. 354 (4) (54 S. E. 1036).

Nos. 10684, 10706. July 11, 1935. Rehearing denied August 10, 1935. C. N. Davie and J. F. Kemp, for plaintiffs. A. H. Henderson and Mundy & Mundy, for defendant.

5. It does not clearly and distinctly appear that the report of the auditor, so far as approved by the trial judge, contained error prejudicial to either party. From the record it can not be said as a matter of law that the executor was not charged with the proper amounts of interest, or that he was not entitled to credits for the expenses and commissions allowed, or that any of the rulings ón the admissibility of evidence resulted in harm to the objecting party. None of the exceptions by either party can be held to show cause for a reversal.

Judgment affirmed on both bills of exceptions.

All the Justices concur, except Gilbert, J., absent.