Moore v. Smith , 121 Ga. 479 ( 1904 )

Cobb, J.

1. While the words “his death,” occurring in that part of the petition where the second contract with Price is first referred to, are ambiguous, and should, under the rule, be construed most strongly against the plaintiff, still, when the whole petition is considered together, we think it is clear that the plaintiff intended to allege that she was employed by Price to render services to the son during the son’s lifetime. The subsequent allegation that when the son died the contract was fully performed seems to make this clear. The cause of action attempted to be set forth in the original petition was not on the contract, but on a quantum meruit for the value of services rendered. The contract was alleged merely as matter of inducement. •

2. If, therefore, the suit had been brought against a legal representative of Price’s estate, a cause of action would have been set forth, as for a quantum meruit, for services performed during Price’s lifetime, it appearing that Price is dead and that consequently specific performance can not be had. See Hudson v. Hudson, 87 Ga. 678, 90 Ga. 581; Banks v. Howard, 117 Ga. 94.

3. The code provides that upon the death of a husband without lineal descendants, the widow is his sole heir, and that she, upon the payment of his debts, if any, may take possession of his estate, without administration. Civil Code, §3355, par. 1. The code also provides, that, “ If the estate has been distributed to the heirs at law, without notice of an existing debt, the creditor may compel them to contribute pro rata to the payment of his debt.” Civil Code, § 3422. By implication and analogy from these sections, where a husband dies and his widow takes possession of his estate, a creditor of the husband might maintain an action on his debt directly against the widow, upon proof that the widow was sole heir and in possession of the estate, that there was no administration on the estate, that his claim was the only debt due by the estate, and that the widow took possession without notice of any existing debt due by the estate. The cases of Johnson v. Champion, 88 Ga. 527, and McElhaney v. Crawford, 96 Ga. 174, recognize the creditor’s right to bring suit against the widow under such circumstances. See also, in this connection, Towns v. Mathews, 91 Ga. 546. The widow is not in such a case to be regarded as the “personal representative” of the estate for all purposes, but she is so far its representative as to authorize the ' creditor to sue her under the circumstances above set forth. While the creditor can require administration, the law will not compel him to do so, when he can by a suit against the widow have adjudicated the rights of all persons interested in the estate. This rule avoids circuity of action. If an administrator were appointed, it would be' necessary for him to recover possession from the widow, and then the creditor must obtain judgment against him. The law favors directness. Here the result is the same whichever method is adopted. The creditor’s claim must at last be satisfied out of property to which the widow would otherwise be entitled, and the law will not require three proceedings, one in the court of ordinary and two in other courts, where the same result can be accomplished by one. The recovery against the widow should be restricted to services performed during the lifetime of Dr. Price. Of course, the plaintiff might maintain an action against the widow on a contract made by her for the performance of services to the son after the father’s death. As we have construed the original petition, there is no effort to recover on such a contract. The allegations and prayers are broad enough to include services rendered after the death of the father, but the petition seeks a recovery against the widow only as the representative of the estate. The fact that the plaintiff may have prayed for the recovery of too large a sum will not result in the dismissal of the petition, but on the trial the recovery should be limited to an amount which would represent the value of services performed in nursing and caring for the child during the lifetime of his father.

4. If the widow have notice of an existing debt of her husband’s, she can not take possession of his estate; and if she does so, she is a wrong-doer. Under such circumstances she might be sued as executrix in her own wrong for thus dealing with personalty, but in no other way could an action be maintained against her as the representative of the estate. The petition should, therefore, have alleged that the widow did not have notice of the debt Sued on when she took possession of the property of the estate. There is no such allegation in the petition. Nor does it allege that the widow did have such notice. It is necessarily to be inferred from the allegations that the widow knew of the contract between Dr. Price and the plaintiff and of the rendition of the services by her. But it does not appear from the petition that when the widow took possession she knew that the plaintiff had an unsatisfied claim against the husband which was “an existing debt” against his estate. The plaintiff should have alleged distinctly that the widow did not know this, but the failure to do so did not render the petition subject to general demurrer, but only to a special objection, which was not made.

5. So much of the amendment as sought to complete the cause of action outlined in the petition, by showing that there were-no other debts and no necessity for administration, and that the widow was in possession, was properly allowed. But that portion of the amendment which sought to set up the contract with the defendant, made after her husband’s death, ought to have been rejected It was clearly open to tire objection made to it, that it set forth a new cause of action; and it was subject to the further objection that it sought to recover against the defendant as. an individual, whereas in the original petition she was sued as the representative of the estate. Such an amendment as the one sought to be made was not allowable even in an attachment case. Direction will be given that so much of the amendment as related to the contract made with the defendant be stricken.

Judgment in part affirmed, and in part reversed, with direction.

All the Justices concur.