Dillard v. Ellington , 57 Ga. 567 ( 1876 )

Bleckley, Judge.

Most of the heirs and distributees of Violet B. Ellington, deceased, filed their bill against Simeon B. Ellington, her administrator, for discovery and account; the object being to compel the administrator to distribute the estate,'and pay to the complainants their respective shares, each share being one thirty-seventh part of the whole. As originally framed, the bill called for full discovery touching assets, expenditures, investments, and all transactions of the defendant, not only as administrator of the intestate, but as executor of the will of her father, W. B. Ellington, and as trustee under that will, and as agent of the intestate prior to her death. This wide range was taken, on the theory that the estate of the intestate consisted of more than the property set forth in the administrator’s inventory, and that the excess was in the form of money, or other assets, for which he was accountable as executor of her father, and as her trustee and agent. The defendant answered, making the discovery prayed for; but instead of disclosing a balance against him, the answer claimed a balance in his favor, growing out of alleged over-payments by him as executor of the father’s estate, and prayed a decree therefor. The complainants then amended their bill, striking out all allegations touching the defendant’s transactions as executor, and renouncing any claim upon him in that character, averring that he had been discharged by the ordinary from his office of executor, after a final settlement of his accounts, and protesting against reopening the settlement or going behind the discharge. The court, nevertheless, referred the case to a master, to report on the defendant’s several accounts, as executor, as agent, and as administrator. The master reported; and divers exceptions to his report were filed by the complainants, the same matters being presented, first as exceptions of law, and again, most of them, with some others, as exceptions of fact. The court overruled them (after some alteration was made, by consent, in the report) as exceptions of law; and as exceptions of fact, sent them to a jury for trial. A verdict sustaining the report by a general finding against all of the exceptions, was rendered. Thereupon the court made a final decree in conformity with the report, which allowed a large balance as due to the defendant for over-payments made to the intestate in her lifetime, by the defendant as executor of her father’s estate. Going further, the decree, in defining the assets to be administered, construed the father’s will in a way to exclude from the assets of the daughter’s estate certain realty alleged by the bill to be a part of the property to be accounted for; the same being also set forth in the inventory returned by the defendant as administrator of her estate. The complainants made a motion for a new trial, grounded on overruling the exceptions as matters of law; on misdirection to the jury; on conflict of the verdict with law and evidence; and on error in the decree as to the realty in question. This motion was overruled.

1. On a bill by the heirs and distributees of an estate against the administrator, for account and settlement, the ultimate question is, what are the assets remaining after all liabilities are deducted ? To determine that question, it is necessary to ascertain what should be -counted as assets, and what as liabilities. If, for this purpose, the condition and accounts of some other estate ought to be examined, the ex-animation may be called for as a part of the general case. The complainants framed their bill on this theory, demanded full discovery, and obtained it. The result being apparently favorable to the defendant, they sought to cut off one branch of the case by an amendment to the bill, and thus deprive their adversary of the benefit of all the discovery which he had made in respect to that branch. This was to make the defendant their witness, and then turn their backs on his testimony. With, as without the amendment, the defendant was entitled to use his answer as evidence, so far as it was responsive, and to take the'benefit of it so far as the responsive matter was a defense, in whole or in part, to the bill as left standing. JThe principle is, that after obtaining discovery, the effect of it is not to be avoided by merely striking out a part of the bill and retaining the balance. After discovery is obtained it is too late to waive it: 50 Georgia Reports, 53. See, also, Code, section 4190.

2, Besides contending that the amendment turned the subject matter of over-payments but of the ease, the complainants urged that the defendant’s discharge as executor closed his accounts, as such, and that he could not re-open them for the purpose of claiming credit for any balance that the returns might show in his favor. If this position as to the effect of the discharge, had been taken in resistance to an effort originating with the defendant to bring in the accounts, there might be force in it. There seems to have been an incomplete settlement between the executor and the legatee, treated by both as partial and provisional only. Afterwards, without any further reckoning or payment, the legatee seems to have given a receipt in full, which receipt was used by the executor in obtaining his letters of dismission. Under these circumstances, it might not be unreasonable to hold, that the effect was, to close the accounts on both sides, and that neither the executor nor those claiming through the legatee could reopen them, except for fraud or mistake, unmixed with negligence. The judgment dismissing the executor might operate equally for and against him in putting to rest all question of no unbalanced accounts being left between him as executor and the legatee, and might be conclusive that all-funds which head-ministered or paid over as a part of his testator’s estate were so in fact. The payments now claimed to have been over-payments, could be presumed to have had some influence on the ordinary in granting the discharge. They were a part of the evidence on which it w-as granted, for they were set out in the executor’s returns. If the executor could withdraw from the operation of the judgment a part of its foundation, and still leave it standing in his favor, where would be the limit to this process of pulling out? If some of the payments could be recovered back as unaffected by the judgment, wliy not all of them, so far as any impediment offered by the judgment is concerned? Moreover, the executor had the benefit, before the ordinary, of the legatee’s final receipt in full. Would that receipt have been given except as a sequel to all the prior payments? With the payments standing as they were made, the legatee would probably be less careful to see, before receipting in full, that the executor had charged himself with all the assets •which came to his hands; and, especially, would the amount of the payments, with no notice that any part was to be reclaimed, operate to prevent any cause from being shown against the application for discharge, though good cause, if the payments had been less, might exist. After the executor’s discharge, why should over-payments be any more in his reach than deficient payments would be in the reach of the legatee ? Were the legatee to sue for payments that ought to have been made, but were not made, the judgment of discharge would be a bar in favor of the executor. ' Why, then, when the executor reclaims payments that ought not to have been made, but were made, should not the judgment of discharge be a bar against him ? The reply, if any there be, would have to rest on the theory that what is adjudicated when a discharge-is granted, is simply that all the estate has been administered, and that those entitled to it have received it. Where this appears, the executor or administrator is entitled to have letters of dismission (it may be said) whether over-pay ments have been made or not. Thus, nothing is adjudicated as to over-payments — they are entirely irrelevant and immaterial, since, with or without them, the judgment would be the same. The judgment speaks affirmatively that enough has been paid, but is silent as to more than enough. Such a reply has the look of strength about it. We need not now hold it sufficient, however, for both parties went behind the judgment voluntarily, and thereby waived the bar of it, once for all, in this litigation. After the complainants have helped to bring the truth into court, how can they say that it has no business there, and that the defendant is estopped from having it there and using it? The judgment was matter of record, and the complainants might and should have known of it, and if they meant to insist on it, should not have run over it in the beginning.

3. The charge of the court on the subject of overcoming or discrediting the defendant’s answer as evidence, was correct as far as it went. It gave the general rule, and in addition thereto, stated that the consistency or inconsistency of the answer was to be regarded and passed upon. The effect of conflict with documentary evidence should have been suggested by counsel and some request made to charge thereon, if counsel contended that such conflict existed.

4. The master’s report proves the facts and conclusions of fact stated therein, until shown to be untrue or erroneous in respect to the matters controverted by the exceptions. The property of being evidence to this extent is inherent in the report. The report- cannot go to the jury for any purpose without bearing that property along with it.

5. It is doubtful whether, if an exception be true in part and false in part, it can be sustained at all. But the court is certainly justifiable in dealing with each exception as a unit, unless requested by counsel to consider them as divided into parts. No request was made of the court to instruct the jury that they might, if they thought the evidence warranted it, find such or such a part of an exception sustained, and the balance not sustained. That the court failed, not refused, .so ' to instruct, is the point of the complainants’ objection to the charge touching the form of the verdict. We do not think the point well taken.

6, 7, 8, 9. In respect to the Confederate bonds turned over by the executor to the legatee, we think the court’s charge was erroneous. The authority of the executor to invest in such securities need not be considered; for the legatee, when of full age, ratified the investment by accepting the bonds as a part of the estate of her father. The latter having died before the war, she must have known that these bonds were not original assets. As she made no complaint of the investment, her heirs cannot be heard to complain of it-now. The bonds represented what went into them — nothing more, and nothing less. The effect of turning them over was, therefore, to discharge the executor from otherwise accounting for the original assets, their proceeds and accumulations, so invested. It was not to make the legatee his debtor, but to perform his obligation, as trustee, to surrender a trust fund. The bonds had never been his property, beneficially, and he was not making a sale of them, but a delivery to the true owner. If this was not the truth of the case, and the bonds really represented the executor’s money, and not money of the estate, then indeed were they the property of the executor. But there is no trace in the evidence of his having so informed her; or of any contract between them for a sale of the bonds. It is scarcely credible that she could have understood that she was purchasing such bonds from him; and it is utterly incredible that she intended to purchase, or he to sell them, at par in good money. The receipts which were given for them tend to negative any suggestion that there was a sale at all. But suppose they were his, and he sold them to her, what ought her estate to pay for them? Certainly not more than their real value, with interest, unless a different price was expressly named and assented to; the burden of proving which would rest on him. Whenever she, after arriving at age, received a dollar of the estate, whether in its first form, or any succeeding form into which it had been changed, the executor was discharged to the extent of one full dollar; but when she received, if at all, a dollar belonging to the executor, the value of the so-called dollar became the measure of his credit, or of her debit, unless a different measure was agreed upon. In other words, a dollar of the estate on both sides of the executor’s account ought to balance, however depreciated it might have been when the legatee received it; but a depreciated dollar of his own, without some express agreement in regard to it, should not cancel his debit for an undepreciated dollar belonging to the estate. It should cancel of the latter a part equivalent to its own real value, and no more. Or, if it was a sheer over-payment to the legatee, in excess of any assets charged, or chargeable to the executor, then, in reclaiming it, he should recover its real value at the time the legatee received it, with interest. That would be exact equity to both parties. The court’s charge on the subject, should have been in substantial conformity to these views. On the state of facts in evidence, it was error to submit the question of whether the bonds were received as good money. They were received, not as money, good or bad, but as bonds; and it made no difference what sort of money went into them; though it did make a most important difference whether that money really belonged to the estate or to the executor. If, in instructing the jury to look to the final receipt in full, given by the legatee to the executor, the court meant to suggest that it was, or might be possible' to draw from that receipt any support, whatever, in aid of the hypothesis that the bonds were received as money, and at their nominal amount in good money, the court erred in this part of the charge, also. We think, too, that as the pleadings stood, it was not appropriate to instruct the jury that the receipt was subject to be reopened. The complainants having amended- their bill, renouncing all claim upon the defendant in his character of executor, there was, or ought to have been, no dispute that the receipt in full was, as far as it went, a correct and proper receipt. We do not understand that either party sought at the trial to reopen it. The defendant contended that, as executor, he had paid ihe legatee in full and over-paid her. The complainants admitted that he had paid her in full (and to that extent went the receipt) but denied that there had been any over-payment. Both of these positions were consistent with the receipt. The receipt said there had been full payment. The complainants said so too,-; and the defendant said there had been that and more. On the question of more, the parties were at issue. If, by reopening the receipt, the'court meant simply, that the defendant was not, by accepting the receipt, concluded from proving his over-payments and having a proper allowance for them in this case, the idea in the judge’s mind was quite correct. But if this was the meaning/ it should have been more distinctly expressed. In construing the receipt and ruling upon its character and effect, we notice, of course, that it is a document relating only to business affairs between the parties to it, as legatee and executor. It does not purport to deal with their relations as principal and agent. What had been previously receipted for by the legatee and left in the defendant’s hands as her agent, would be as subject to be called for by her or her legal representatives after this receipt was given as before. Her receipt in full to the executor, as such, signifies that all of her father’s estate to which she was entitled had been turned over to her, and that she had no further claim upon him connected with the trust imposed by her father’s will. What claim, if any, she may have had upon him as an individual, or as her agent or bail.ee, the receipt does not pretend to speak. In regard to that part of their business, it is utterly silent.

10. That the executor ever advanced any of his own money for the benefit of his testator’s estate, is not declared expressly on the face of his annual returns. It is but an inference from the state of his accounts, comparing the amounts received with the amounts paid out. His answer to the bill, does not specify the various sums advanced, or give the precise dates at which advances were made. From some of the results arrived at by the master in his report, there is strong probaLility that some part of the large balance appearing in the executor’s favor, on aggregating his returns, grew out of contributions from his own funds, made during the late war, and either invested in Confederate securities, or applied,in payment of current expenses, such as taxes, support and maintenance of the two daughters of the testator, etc. As to any money of the executor which may have been invested in Confederate securities, we have already seen that the securities would not be the property of the estate, although so treated by the executor, and that the credit therefor to which he would be justly entitled would be no more than their actual value at the time of turhing them over. The same principle would apply to any advances rightfully made by him in paying expenses. If they are credited to him, as of the proper dates, at their then real value (adding interest if they were in excess of all his proper debits), he will have the full measure of his rights. If he advanced depreciated currency, it was paid out as depreciated currency, and expenses thus defrayed must have been nominally more than they would have been if a better currency had been used. Therefore, the benefit to the estate, or to the testator’s daughters (the legatees), must have been less from each and every dollar, than it would have been if the money had been good money. If, contrary to the probabilities of the matter, whether we rest upon the public history of the times or the just inferences from the evidence in the record, he advanced and used good money to, pay expenses in 1863, 1864, and the early part of 1865, he should not only prove the fact, but should, moreover, reconcile it with the large aggregate of expenses in each of those years, and with the inflated prices which his vouchers exhibit as to many of the particular items. Money belonging to the estate, and used for its benefit, is not to be scaled; but money put in by the executor is to count only for what it was worth.. What has already been said in respect to the difference between bonds of the estate and bonds of the executor, is equally applicable to currency paid out as expenses.

11. Allowing there to be abalance in favor of the executor on a proper adjustment of his executorship accounts, as a whole, such balance would, of course, not all be chargeable to one of the legatees. Thus charging it by the master in his report, was, at the hearing, conceded to be erroneous, and the report was so far corrected as to debit the estate of Violet B. with one-half, instead of the whole of the balance found. This was recognizing the position taken in the third exception of law. But as Violet B. received, or had the benefit of more, and her sister of less, than half, the report added to Violet B’s debit of one-half, the whole difference between them; that is, the whole amount which she received or had the benefit of in excess of what her sister received or had the benefit of. ' This addition was too much, even if the figures used had been otherwise correct. It was just double what it should have been. No sum or quantity can be divided unequally into two parts, one of which shall be equal to half of the whole and the whole of the difference between the parts themselves. If an account be chargeable severally to two persons, in the proportion each was benefited, each should be charged with half of those parts of the account which accrued for joint and equal benefit, the whole of those parts which accrued for sole benefit, and a pro reda proportion of such parts as accrued for joint but unequal benefit. If gone through with in detail and each item or group of items dealt with separately, this would be the principle of classification in respect to each and every dollar. But the same general result would be arrived at, if, knowing only the aggregate of the account, and the aggregate of the excess received by one of the persons over the other, we should take half of each of these aggregates and add them together to find the amount chargeable to one of the persons, and subtract half of the latter aggregate from half of the former (that is, half of the excess from half of the account) to find the amount chargeable to the other person. It is only a truism that, for a sum to be composed of any two quantities, both must be equal, that is, each must be precisely half of the sum; or else one must exceed, and the other fall short of half, not by the difference between the two, but by half of that difference; that is, by the difference between either and the half of both.

12. If each legatee got more than she was entitled to, it would be a singular consequence that one of them should have to refund to the other, and not to the executor. How could a legatee who had been overpaid, herself, complain that another got more than she ? We can see no possible relevancy to this case, in anything which has been done or omitted, or which might have been done, in relation to settling up the estate of the younger sister. There is no-pretense that her estate, or that the defendant as representative thereof, is chargeable with anything, or that that estate has not been fully and finally administered. The defendant is not now contending that one sister’s estate owes the other’s estate, but that both estates severally owe him ; and he seeks to recover out of one of them what it owes, and no more. That, in settling up the other, he made no similar claim upon it, is his own concern. That he waived his rights in respect to that estate, does not oblige him to do the like in respect to this.

13. Touching the statute of limitations, as a bar to the allowance of the claim for over-payments, we need say only, that we do not think a creditor’s claim can become barred while he is the sole administrator upon his debtor’s estate. As he cannot sue himself, the statute does not run ; and we are not aware of any law that compels the exercise of the right of retainer, on pain of forfeiting it, within any specific time after taking out administration.

14. We do not regard the administrator’s inventory as inconsistent with his position, that he was a creditor in possession of the personalty, with a right, by contract, to treat it as security for his debt. Whether the property was thus burdened or not, it is equally the property of the intestate’s estate, and the inventory is still true. The administrator does not object to administering the personalty, but what he wants is, to take the proceeds as a creditor. Whether he can do that or not, will depend in no degree on contradicting the inventory. In like manner, the inventory, as to the realty also, corresponds with the state of the title, as will be seen below, for which reason there need be no consideration of what its effect might have been, by way of estoppel upon the administrator, if the true title had been at variance with it.

15,16,17. We think that the testator intended to, and did, die testate as to his whole estate. After completing specific devises and bequests, he adds: “All the residue of my estate of every sort and kind not disposed of above, I give to my two daughters above named, in equal shares when distributed.” The clause containing the specific devise and bequest to his daughters (omitting introductory matter) reads thus: “I therefore bequeath and devise to my executor, S. C. Ellington, in trust to and for the sole'and separate use of my two daughters, Violet B. and Ann E., for and during their natural lives, and at their death, to their children, respectively, to be subject to the debis of no person whatever, the tract of land (describing it) and (certain personalty, describing it) to be held and managed by my executor until my eldest daughter arrives at age, or marries, after which event, I desire all this property divided between my said daughters in equal shares. Should either of my said daughters die without child or children, such property shall revert to and belong to the other sister.” When the younger daughter died, her interest in the whole property embraced in this clause ceased, and the survivor stood as if she had been alone originally. The property reverted to her, and, construing both clauses of the will together, she then held the whole, with a contingent remainder to her children interposed between her particular estate for life, and her reversion in fee. Technically, perhaps, the particular estate would be in the trustee for her benefit, and the reversion not in the trustee, but properly in herself. At all events', while she lived, the contingent remainder was not drowned out. Her estate was the equivalent of a fee, subject to be cut down by the remainder. When she died without children, the fee, unimpaired by the contingent remainder, descended to her heirs. It is not certain that aid is needed from the residuary clause of' the will, to pass the reversion into the surviving sister, as to the whole of the specific property. But if needed, we think that clause may be invoked. The failure of a remainder to become vested, which the testator must have known, and not merely may have known, might never vest, is not like the ordinary case of a void or a lapsed devise. When the testator created a remainder in favor of children unborn, he must have known that they might never be born, and hence that the remainder was necessarily contingent. On the state of facts.which he knew to exist at the time the will was made, he knew that there was a reversion'as to this specific property. But intending to leave none of his estate undisposed of, he proceeded to dispose of this reversion effectually in the residuary clause, if he had not already done so in the previous clause. When a reversion may be incident to a specific devise, the testator may be supposed not to have contemplated it; but when it must be incident, and cannot possibly be otherwise, the presumption should be that he had it in mind, and that language used by him, sufficiently comprehensive to dispose of it, was used with that intent: See 1 Jarman on Wills, 591, 592, 593; 1 Mau. & Sel., 300; 1 B. & Adol., 186; 6 Paige Ch., 600. On this view of the matter, the distinction is evident between the present case and that in 50 Georgia Reports, 523. It is proper to suggest that, as to the specific property in question, whatever interest in the reversion passed temporarily to the younger sister, under the residuary clause, was, on her death, without children, terminated or carried over by virtue of the previous provision that “such property shall revert to and belong to the other sister.”

It is full time to close this already too lengthy opinion. We need not apply its principles to all that was done or said by the court, and which has been complained of as error, approving or disapproving everything in detail. The application will, we trust, be sufficiently obvious for all practical purposes. Let the decree be set aside, qnd a new trial granted.

Judgment reversed.